Developments Under

47 U.S.C. §230
Lee T. Gesmer
Boston Bar Association
Hot Topics in Internet Law
April 29, 2009
CLIENT
JUICYBOSTON.COM
• Individual pages (ala Facebook)

• Blog hosting

• Local News (original and from other

sites)
• Personals

• Classified ads

• Uploading text/graphics/sound files

• Advertiser supported
"Casual Encounters"
ALL ACCOUNTS ARE ANONYMOUS!
WE PURGE ALL IDENTIFYING
DATA DAILY!
Congress shall make no
law . . . abridging the
freedom of speech
GENERAL COUNSEL
47 USC. 230(c)(1):

"No provider or user of an

interactive computer service
shall be treated as the
publisher or speaker of any
information provided by
another information content
provider"
No Website or User

Shall be Liable

For Content Written by Another

47 USC. 230(c)(2):

No provider or user of an interactive computer

service shall be held liable on account of

(A) any action voluntarily taken in good faith to

restrict access to or availability of material
that the provider or user
considers to be obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is
constitutionally protected
The Fact That the Website Filters
or Removes Content Does Not
Make it a Speaker or Publisher
Statutory exceptions:

Intellectual Property Laws

Federal Criminal Laws

Electronic Communications Privacy

Act (ECPA)
 Copyright

Digital Millennium Copyright Act

(DMCA)
 Trademark Law

Trade Secret Law?

 Obscenity

Child Pornography

Gambling
User Posts Directly to
JUICYBOSTON.COM
User Sends an E-mail to
JUICYBOSTON.COM
John (author) ---->Debby (forwards)

---->

JUICYBOSTON.COM (posts)
"No provider or user . . .
Barrett v. Rosenthal,
40 Cal. 4th 33 (2006)
Barrett:

Immunity for user who

redistributes content on the
Internet without modification
JUICYBOSTON.COM knows the content
is extremely defamatory/invasive
 "I am going to shoot and kill as many
people as I can until which time I am
incapacitated or killed by the police."
"I am going to shoot and kill a child in the
Arkham Elementary school this week"

"Dunwich next week"

Different Tort Paradigm
 "Cyberspace
Exceptionalism"
"Marketing Representations"
:

"This is a safe environment for your

kids"
False description of the service or product?
 Mazur v. eBay

2008 WL 618988
(N.D. Cal. March 4, 2008)
eBay falsely claimed the live auctions
involved carefully screened, reputable
international auction houses
 "Screening a potential auction house
when deciding whether to include it in
Live Auctions is akin to deciding whether
to publish and therefore eBay is immune
…."
eBay stated:

“Bidding on eBay Live Auctions

is very safe.”
Court:

“since eBay guaranteed safety, they owed

a duty of care and were consequently in
breach of that duty when they allowed
shill bidding practices to occur.”
Doe v. SexSearch.com, 502 F.Supp.2d 719
(N.D. Ohio 2007), aff’d on other grounds,
(6th Cir. 2008)
“Everyone on the site is over 18”
13 year old girl lied, hooked up with
adult
“… Plaintiff is seeking to hold SexSearch liable
for its publication of third-party content and
harms flowing from the dissemination of that
content. The underlying basis for Plaintiff's
claim is that if SexSearch had never published
Jane Roe's profile, Plaintiff and Jane Roe never
would have met, and the sexual encounter
never would have taken place. Plaintiff thus
attempts to hold SexSearch liable for ‘decisions
relating to the monitoring, screening, and
deletion of content from its network - actions
quintessentially related to a publisher's role.’”
 Apartment rentals on
JUICYBOSTON.COM!
 Fair Housing Council v.
Roommates.com, LLC,
521 F.3d 1157 (9th Cir.2008)(en banc).
 Fair Housing Act
42 U.S.C. 3601 et seq.

“race, color,
religion, sex, familial
status, or national origin”
• Gay males?
• Straight females ?
• Lesbians ?
• Straight or gay males ?
• Only with “straight males ?
• Only with Gay males ?
• No males ?
• Children present
• Children not present
 because “Roommate created the
questions and choice of answers, ”
Roommate is “undoubtedly the
‘information content provider’ and can
claim no immunity”
Would free text be treated
differently?
I’m looking for a roommate
or tenant:
• No breeders
• No brats
 Roommates.com “publishes these
comments as written” and “does not
provide any specific guidance as to
what the essay should contain, nor
does it urge subscribers to input
discriminatory preferences,” “[t]his is
precisely the kind of situation for which
section 230 was designed to provide
immunity.”
“active inducement”?

“culpable assistance”?
Chicago Lawyer’s Committee for
Civil Rights Under Law v.
Craigslist, Inc.,
519 F.3d 666 (7th Cir. 2008)
 Free Text Descriptions Only

Immune Under Section 230

 NPS LLC (New England Patriots) v.
StubHub (Gants, J. Suffolk Superior
Court, January 26, 2009)
 The Ninth Circuit has interpreted the term
“development” as “referring not merely to
augmenting the content generally, but to
materially contributing to its alleged
unlawfulness. In other words, a website helps
to develop unlawful content, and thus falls
within the exception to section 230, if it
contributes materially to the alleged illegality of
the conduct.” Roommates, . . .. Here, as
discussed earlier, there is evidence in the
record that StubHub materially contributed to
the illegal “ticket scalping” of its sellers.