The Reach of the Communications Decency Act’s “Good Samaritan” Clause

Two recent local cases, one from the Second Circuit and one from the District of New Jersey, serve as reminders regarding the reach of the “Good Samaritan” clause of the Communications Decency Act (“CDA”) and demonstrate that the CDA is a powerful defense against tort claims brought against operators of websites.

The Communications Decency Act, 47 U.S.C. § 230, was enacted in 1996 to prevent civil liability against websites for harm caused by information posted by third party users:  “[n]o 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.”  47 U.S.C. § 230(c)(1).  “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  Id. § 230(e)(3).  By its language, Section 230 creates a federal bar to any cause of action that would make service providers liable for information originating with a third-party user of the service.  See Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).  Essentially, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role and, therefore, lawsuits that seek to hold a service provider liable for its exercise of a publisher’s traditional editorial functions (such as whether to publish, withdraw, alter or postpone content) are barred.  Ibid.

The policy underlying the CDA is the promotion of “the continued development of the Internet and other interactive computer services.”  See 47 U.S.C. § 230(b)(1); see also Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 847 (W.D. Tex. 2007) (“To ensure that web site operators and other interactive computer services would not be crippled by lawsuits arising out of third-party communications, the [CDA] provides interactive computer services with immunity.”), aff’d 528 F.3d 413 (5th Cir.), cert. denied 129 S.Ct. 600 (2008).  It has been consistently explained that Section 230 provides a “robust” immunity and that any and all doubts must be resolved in favor of immunity.  Goddard v. Google, Inc., 2008 WL 5245490, *2 (N.D. Cal. Dec. 17, 2008).

For Section 230 to be applicable, three elements must be met:  (1) the defendant is a service provider of an interactive computer service; (2) the posting on the website was created by another information content provider; and (3) the cause of action treats the defendant as a publisher or speaker of information.  Zeran, supra, 129 F.3d at 330; Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 830 (2002).

In the typical case, the CDA is utilized to prevent an operator of website from being responsible for the defamatory statements posted by third parties.  Jones v. Dirty World Entm’t Recordings, LLC, 755 F.3d 398, 403 (6th Cir. 2014).  The CDA, however, is not limited to defamation claims and courts have generally taken a liberal view of the protection offered by the CDA:

[A c]ourt should not ask what particular form the plaintiff’s claim takes . . . but whether the claim is directed toward the defendant in its publishing, editorial, and/or screening capacities, and seeking to hold it “liable for its publication of third-party content or harms flowing from the dissemination of that content.”

Does v. SexSearch.com, 502 F. Supp. 2d 719, 727 (N.D. Ohio 2007) (quoting Doe v. MySpace, 474 F. Supp. 2d at 849) (emphasis added).)   Thus, a defendant will be treated as a publisher or speaker when the alleged harm flows from the dissemination of the content published on its website.  Doe v. MySpace, supra, 474 F. Supp. 2d 843, 849 (W.D. Tex. 2007).

Courts have held that the CDA protects an internet service provider from civil liability in personal injury cases.  See Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y. June 15, 2009) (holding that the CDA barred the plaintiff from suing Craigslist for permitting the illegal sale of a handgun on its website, which was ultimately used to shoot the plaintiff); Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007) (dismissing a lawsuit by an underage girl who had met an adult male through her MySpace page and was eventually assaulted).  In Mayhew v. Poling,  Civ. No. 09-C-32 (W.V. Cir. Ct. [Barbour County]), we successfully utilized the CDA to dismiss the plaintiff’s lawsuit against an auction-style website for firearms and firearm products.  In that case, an individual had posted an advertisement for the sale of a muzzleloader on the website, but when he shipped the muzzleloader to the winning bidder, he shipped it loaded.  Upon receipt, the purchaser pulled the trigger, resulting in the death of a coworker.  The plaintiff argued that the website had a duty to warn the users about shipping loaded firearms, but, relying on the CDA, the Circuit Court held that the ultimate harm flowed from the publication of the third party content on the website.

Ricci v. GoDaddy

Last week, the Second Circuit addressed the immunity provisions (the so-called “Good Samaritan” clause) of the CDA for the first time in the case Ricci v. GoDaddy.com, LLC.  Peter Ricci, a Teamsters member, refused to endorse the Union President during a meeting in September 2002.  Ricci alleged that as a result he was “blackballed” and received fewer jobs.  In 2012, some members of the Union distributed newsletters containing defamatory statements about Ricci and his family and the newsletters were also posted on a website (thewestchesternewsletter.com), which was hosted on GoDaddy.com, LLC’s (“GoDaddy”) web servers.  Plaintiffs (Ricci and his wife) alleged that GoDaddy (1) hosted the website that published the defamatory newsletters; (2) refused to remove the newsletters; and (3) refused to investigate the Riccis’ complaints about the newsletters.  Plaintiffs then sued GoDaddy for defamation.

Although never previously addressing the CDA, the Second Circuit found that (1) GoDaddy is an interactive computer service provider; (2) GoDaddy did not create the allegedly defamatory newsletter; and (3) the allegations against GoDaddy attempted to treat GoDaddy as the publisher of the information on the website.  Importantly, the Second Circuit also held that GoDaddy was under no duty to remove the allegedly defamatory newsletter that was authored by another.  Therefore, the case against GoDaddy was dismissed.

Saponaro v. Grindr

On March 13, 2015, the District of New Jersey addressed application of the CDA in a negligence case.  In Saponaro v. Grindr, Civ. No. 14-04522 (JBS/AMD), a minor had created an online profile on the website, Grindr, LLC (“Grindr”), but held himself out as being over the age of eighteen.  The minor and another Grindr member (LeMunyon) met on the website, and eventually an encounter was scheduled.  LeMunyon then contacted the plaintiff who also met with the minor and engaged in the sexual encounter.  The plaintiff was then arrested and charged with sexual assault and endangering the welfare of a child.  The plaintiff brought suit against Grindr alleging that the website was negligent for allowing a minor to hold himself out as an adult and that it had a duty to monitor and enforce its age-restriction policies.  Plaintiff alleged that he detrimentally relied upon Grindr’s age-restriction policy found in its Terms of Service.

Chief District Judge Jerome Simandle dismissed Plaintiff’s action, finding that the CDA’s immunity provision barred the lawsuit.  Relying on the Doe v. MySpace case, the Court held that a website provider owed no duty to actively monitor its website and no duty to ensure its users were adults.   District Judge Simandle specifically held that the CDA is to be construed broadly and noted that policy considerations weigh heavily in favor of a broad interpretation.  If the CDA did not afford websites protection in a situation such as the one at hand, “they are left with two extreme courses of action if they wish to ensure insulation from liability: either over-police their networks, taking down communications that might ultimately be harmless; or, strip users of the ability to post communications altogether.”

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Written by Danny C. Lallis

Danny is a Partner with Pisciotti Malsch, and his practice includes appeals, product liability, and commercial litigation.