Ninth Circuit Finally Gets CDA Mostly Right


The Communications Decency Act (CDA) has long been unjustly applied by courts all over the nation. Now, the Ninth Circuit may have finally construed the hot-button statute (almost) correctly in its opinion in Fair Housing Council v.


As the court notes:


The touchstone of section 230(c) is that providers of interactive computer services are immune from liability for content created by third parties.


The idea is to hold ISPs free of liability for defamatory and similarly troublesome content created and posted by third party users. For example, if User A of a message board on posted a defamatory note about User B, User B could not sue for providing the message board to User A, because the site had no part in creating the content that was defamatory. This makes perfect sense, because an ISP could not reasonably review every single message on a message board in real time to try to protect against defamatory content.


The problem, however, is that courts have virtually universally construed the statute to be overly protective of ISPs, finding that if the content is created in whole or in part by a third party user, the ISP is totally immune.


One can see the fallacy of such a standard if applied in certain other scenarios: ISP knowingly contracted with a customer the ISP knew would use its services to send millions of pieces of unlawful spam? ISP is protected. ISP has a customer that routinely sends death threats to others as a joke, and the ISP has been notified of the practice numerous times? ISP is protected. ISP has a customer that hosts material advocating the overthrow of the United States government and actively provides specific and detailed information about vulnerable targets, and provides detailed bomb-construction tools and materials? Protected.


To this point, nothing has been enough to pierce an ISP’s immunity, so long as a third party is involved in providing the content. This construction, quite the contrary to long-established negligence-based defamation law applicable to newspapers and other media, has mystified many legal scholars and online defamation victims for years.


The argument against a negligence standard, or course, is that the statutory standard provided in the CDA does not contemplate negligence as a standard.


The facts in the matter are similar to our fictitious message board scenario. A user posted discriminatory comments in a “free form” box that was provided by the website, and entered other information via “drop down” boxes. The primary claim in the matter was that the site encouraged discriminatory content by telling its users to describe their interests and dislikes in a roommate. The exact text provided next to the “free form” box by the site was: “we strongly recommend taking a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.”


Based on the facts, the Court correctly finds that the prompts provided by, which were far from actively encouraging discriminatory content, were not sufficient to hold the site liable. In doing so, the Court finally provides language that properly applies the statute.


While Carafano is written in broad terms, it must be read in light of its facts. Carafano provided CDA immunity for information posted by a third party that was not, in any sense, created or developed by the website operator—indeed, that was provided despite the website’s rules and policies. While Carafano is written in broad terms, it must be read in light of its facts. Carafano provided CDA immunity for information posted by a third party that was not, in any sense, created or developed by the website operator—indeed, that was provided despite the website’s rules and policies. We are not convinced that Carafano would control in a situation where defamatory, private or otherwise tortious or unlawful information was provided by users in direct response to questions and prompts from the operator of the website.


This is a correct construction. Carafano was a matter in which a malicious user of a dating website forged a personal profile of Carafano, an actress of Star Trek fame, without any prompt whatsoever from the dating site. The key point, of course, was the Court's accurate recognition that when an ISP actively encourages or allows the damaging third party content, the ISP can face liability.


The Court also finds that:


by categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is ‘responsible’ at least ‘in part’ for creating or developing.


This is correct, in theory, but the Court fails to provide the circumstances under which liability should and should not occur. If a site stores the defamatory content in a database with no reasonable knowledge of its harm and uses standard categorizing and channeling methods, electronic or not, it makes no sense to hold the site liable. If a site were liable for these methods without knowledge one could see search engines, message board operators, bloggers and others incurring liability for simple, standard practices, such as archiving, providing search results and more.


On the other hand, if a site knows of the content, or should have known about the content using standard reasonble precautions and “republishes” the content as explained by the Court, then liability is appropriate just as it would be when it encourages the content. This is in line with standard defamation law while still recognizing the substantial fluidity of information on the Internet.


Bottom Line: Section 230 of the CDA continues to be one of the most misguided statutes in electronic law. The 9th Circuit makes some promising strides towards a correct interpretation by recognizing that complete immunity is unworkable. The court's opinion oversteps its bounds, however, which will distract from the language that finally sets out the appropriate Section 230 standard for ISP immunity.

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