Google Search Qualifies For Section 230, Whether or Not It’s a “Platform”–Chukwurah v. Google

26 03 2020

Technology & Marketing Law Blog
Eric Goldman
February 4, 2020

This is a prisoner pro se lawsuit. “The Complaint avers that beginning February 28, 2014, Google identified Chukwurah as a ‘a triple murderer serving 50 years in a Maryland,’” allegedly because of false court documentation. The court explains:

the Court, at best, may plausibly infer that Google amounted to the search engine which linked Chukwurah’s name to content created and published by the Circuit Court. Even Chukwurah concedes that Google “is a search engine who didn’t start this defamation.” Thus, the CDA precludes the common law defamation claims against Google as a third-party interactive computer service provider…

Chukwurah, in response, seems to argue that the CDA does not bar his claims because Google created the platform that “enabled the defamation of [his] name in a demonizing manner [g]lobally.” But this is precisely the service provider’s role that the CDA aims to protect. Where, as here, a lawsuit seeks to hold the provider liable for decisions about posting content created by a third party, the CDA precludes the claim against that provider.

The court deftly sidesteps the platform vs. publisher dichotomy, which makes sense because that dichotomy is asinine and incoherent. As the court succinctly says, Section 230 immunizes lawsuits that seek to “hold the provider liable for decisions about posting content created by a third party.” Call it a platform or a publisher; it doesn’t matter. The result is the same either way: Section 230 preempts the claim.

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Why Section 230 Matters And How Not To Break The Internet; DOJ 230 Workshop Review, Part I

23 03 2020

Tech Dirt
Berin Szoka, Ashkhen Kazaryan, and Jess Miers
Feb, 21, 2020

The Department of Justice held a workshop Wednesday: Section 230 – Nurturing Innovation or Fostering Unaccountability? (archived video and agenda). This was perhaps the most official “Airing of Grievances” we’ve had yet about Section 230. It signals that the Trump administration has declared war on the law that made the Internet possible.

In a blistering speech, Trump’s embattled Attorney General, Bill Barr, blamed the 1996 law for a host of ills, especially the spread of child sexual abuse material (CSAM).

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The content in this post was found at https://www.techdirt.com/articles/20200221/11290843961/why-section-230-matters-how-not-to-break-internet-doj-230-workshop-review-part-i.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Court To Racist Douchebags: It’s Not Defamatory For A Newspaper To Call You ‘Racist Douchebags’

21 03 2020

Tech Dirt
Tim Cushing
Nov 15th 2019

When is it defamatory to call people “racist douchebags?” Well, let’s start with the “douchebag” part. This is always a statement of opinion and never actionable. . .

Calling someone a racist is almost always a statement of opinion. Unlike calling someone a felon or a child molester, claims of racism are based on perception. This makes them closer to a statement of opinion than an actionable fact.

So, calling people “racist douchebags” isn’t defamatory.

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The content in this post was found at https://www.techdirt.com/articles/20191110/13531143357/court-to-racist-douchebags-not-defamatory-newspaper-to-call-you-racist-douchebags.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Section 230 Applies to Facebook’s Post Removals and Account Suspensions–King v. Facebook

9 09 2019

Eric Goldman
Technology & Marketing Law Blog
September 6, 2019

The court summarizes the facts:

King alleges Facebook removed multiple posts by him, and temporarily suspended his Facebook access on several occasions in 2018, for posts that Facebook deemed a violation of its terms of service (“ToS”). The crux of his claim is that Facebook has violated its ToS in removing his posts and suspending his account, and that Facebook treats black activists and their posts differently than it does other groups, particularly white supremacists and certain “hate groups.”

This is an easy Section 230 dismissal:

  • ICS Provider: King admitted.
  • Publisher/Speaker claims: Yes, because each claim “is based on Facebook’s provision of the service for use by others or its moderator decisions on which posts to remove or not and which accounts to suspend or not” (cites to Brittain v. Twitter and Fields v. Twitter)
  • Third-party content: “all of King’s allegations rest on treatment of speakers (who make posts or otherwise provide content) and differential treatment of specific posts made either by himself or by other Facebook users”

Case citation: King v. Facebook, Inc., 3:19-cv-01987-WHO (N.D. Cal. Sept. 5, 2019)

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The content in this post was found at https://blog.ericgoldman.org/archives/2019/09/section-230-applies-to-facebooks-post-removals-and-account-suspensions-king-v-facebook.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Court Says Section 230 Shields Twitter From Revenge Porn Bro’s Stupid Lawsuit

16 07 2019

Tim Cushing
Tech Dirt
June 13, 2019
Former revenge porn extortionist and current pro se litigant, Craig Brittain, is one severely-narrowed complaint away from having his lawsuit against Twitter tossed. Brittain sued Twitter over the deletion of several accounts, including those he had whipped up for his Senate run.

The court’s first pass at the lawsuit moved it to California, a venue shift Brittain explicitly agreed to each time he created another alt account. Terms of service say suing Twitter means suing in California, even if you’re an Arizonan Senate hopeful with a closet that contains nothing but skeletons.

Contrary to Brittain’s fervent and litigious belief, there’s nothing illegal about deleting Craig Brittain’s multiple Twitter accounts. Brittain’s lawsuit tried to make it possible by treating Twitter as both a provider and a publisher, depending of which description worked out better for his arguments. The court decides to let Brittain have it both ways — and lose both ways. (h/t Adam Steinbaugh)

As a service provider, Twitter cannot be held liable for third party content. It can also remove accounts without losing this immunity. Since this isn’t about the removal of content, but rather the removal of accounts, Brittain tried to argue Section 230 immunity can’t protect Twitter from this lawsuit because removing accounts (and their content) is an editorial activity. The court points out this has zero effect on Section 230 protections. From the decision [PDF]:

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The content in this post was found at https://www.techdirt.com/articles/20190612/19144342387/court-says-section-230-shields-twitter-revenge-porn-bros-stupid-lawsuit.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Section 230 Protects Snapchat from Liability for Cyberbullying–Grossman v. Rockaway Township

4 07 2019

Eric Goldman
Technology & Marketing Law Blog
July 1, 2019

This case involves the heartbreaking suicide of 12 year old Mallory Grossman, driven by offline and online peer bullying that included mean Snapchat messages. (Note: the opinion refers to Mallory as “MG,” but poor redactions reveal her name in the opinion; and her story has been extensively covered by name in New Jersey papers and a newly passed NJ anti-bullying law is named after her). The parents sued the school district and Snapchat. The procedural facts aren’t clearly laid out, but it appears the school district piggybacked on the parents’ claims against Snapchat, essentially pointing at Snapchat as the real wrongdoer instead of itself.

This devolves into a fairly straightforward Section 230 defense win, aided by defense-friendly NJ-area precedents such as Donato v. Moldow, DiMeo v. Max, Obado v. Magedson, and Parker v. Google, Reviewing the applicable complaints, the court says:

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Case citation: Grossman v. Rockaway Twp., 2019 N.J. Super. Unpub. LEXIS 1496  (N.J. Superior Ct. June 10, 2019). The initial complaint.

The content in this post was found at https://blog.ericgoldman.org/archives/2019/07/section-230-protects-snapchat-from-liability-for-cyberbullying-driven-grossman-v-rockaway-township.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Twitter Isn’t Liable for Impersonation Account–Dehen v. Doe

26 09 2018

Technology & Marketing Law Blog

Eric Goldman

Sept. 24, 2018

Tiffany Dehen is a 2016 alumna of University of San Diego’s law school. Her website declares that she is “a true American and Patriotic Trump Supporter,” and her photo album includes a photo of her smiling with Dinesh D’Souza. She claims that an unidentified person created a “parody” Twitter account that used her photo and posted objectionable content. She reported the account to Twitter and, after a few days, the account was disabled. You can read more about her motivations for filing this lawsuit in an Above the Law interview. Dehen sued several defendants; I’ll focus on Twitter’s liability.

 

Case citation: Dehen v. Doe, 2018 WL 4502336 (S.D. Cal. Sept. 18, 2018). Dehen’s website has an archive of case filings.

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/09/twitter-isnt-liable-for-impersonation-account-dehen-v-doe.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Court Awards $12,500 For ‘Emotional Harm’ From Bogus Copyright Lawsuit

6 08 2018

Tech Dirt

Mike Masnick

Almost a year ago, we wrote about a somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. Paula White did not take kindly to this criticism and sued Johnson… for copyright infringement (though, the details suggest that the decision to sue actually came from White’s son, Brad Knight, and White agreed to it at Knight’s suggestion). This was because Johnson used video clips and images in her own videos. This seemed like a pretty clear copyright abuse case as it was obviously filed to stop criticism that involved fair use, and not for any legitimate purpose. The case was dismissed, but Johnson countersued for “malicious prosecution.” As we noted in our article from last September, Johnson then also filed a separate lawsuit for a DMCA 512(f) abuse claim. If you don’t recall, 512(f) is the (mostly toothless) part of the DMCA that bars “misrepresentations” in DMCA claims. So, there are two parallel cases going on, brought by Johnson (representing herself, without a lawyer), against Paula White and her various entities, for filing a bogus copyright claim against Johnson.

That case around 512(f) is still going as far as I can see. However, the malicious prosecution case has now concluded with the court awarding Johnson $12,500 for the “emotional harm” from the bogus copyright claim. Of course, before this happened, as the court itself says (and I’m not joking): “all hell broke loose.” That is directly from the court’s ruling back in January, which details a convoluted mess of discovery fights and bad behavior.

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In a Divided Opinion, California Supreme Court Squashes End Run around CDA Immunity That Sought to Compel a Non-Party Online Platform to Remove Defamatory Content

2 08 2018

Proskaur

Jeffrey Neuburger
July 31, 2018

In a closely-followed dispute, the California Supreme Court vacated a lower court order, based upon a default judgment in a defamation action, which had directed Yelp, Inc. (“Yelp”), a non-party to the original suit, to take down certain consumer reviews posted on its site. (Hassell v. Bird, No. S235968, 2018 WL 3213933 (Cal. July 2, 2018)).  If the plaintiffs had included Yelp as a defendant in the original suit, such a suit would have likely been barred by Section 230 of the Communications Decency Act (“CDA” or “CDA Section 230”); instead, the plaintiffs adopted a litigation strategy to bypass such legal immunities.  In refusing to allow plaintiff’s “creative pleading” to avoid the CDA, the outcome was a win for online companies and platforms that host user-generated content (“A Case for the Internet,” declared Yelp).

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The content in this post was found at https://newmedialaw.proskauer.com/2018/07/31/in-a-divided-opinion-california-supreme-court-squashes-end-run-around-cda-immunity-that-sought-to-compel-a-non-party-online-platform-to-remove-defamatory-content/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

 

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Recapping a Year’s Worth of Section 230 Cases That Got Stuck in My Blogging Queue

2 08 2018

Technology & Marketing Law Blog


April 30, 2018

[Though most of these rulings are defense-favorable, Congress recently eviscerated Section 230 and isn’t done ruining its greatest online policy masterpiece]

Twitter Defeats Defamation Claim

 

Case citation: Frenken v. Hunter, 2018 WL 1964893 (N.D. Cal. April 26, 2018)

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Section 230 Protects Instagram Link to Defamatory Content

Case citation: Marfione v. Kai USA, 2018 WL 1519042 (W.D. Pa. March 28, 2018)

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No Liability for Cyber-Harassment Attack, Even if the Service Could Have Been Designed Differently

 

Case citation: Herrick v. Grindr LLC, 2018 WL 566457 (SDNY Jan. 25, 2018)

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Section 230 Protects Message Board 

Allnurses runs a message board related to nursing. The plaintiff offers Active Test Prep (ATP), a test prep service for nursing exams. Allnurses users allegedly defamed ATP in message board posts. Allnurses defends on Section 230 grounds, which the court largely accepts. ATP claimed the users were Allnurses’ “agents” but didn’t marshal good evidence to support the assertion. Also, the court says Section 230 applies to claims that Allnurses “ratified and adopted” the user comments. In a footnote, the court says: “ATP argues that Allnurses selectively removed content and ultimately closed the thread—but that is precisely the type of action that the CDA was intended to protect.”

The opinion also addresses what it means to “like” an allegedly defamatory post: “to ‘Like’ something online is not to vouch for its veracity, and certainly not in whole.” See Bland v. Roberts.

ATP also claimed breach of contract for Allnurses’ failure to enforce negative behavioral covenants in the TOS (have you noticed how often plaintiffs are trying this attempted workaround to Section 230?). The court says that Allnurses’ contract formation failed because ATP  “does not allege, and the record does not show, that users must check a box accepting the statement ‘Your participation implies full acceptance with our Terms of Service.’” [Protip: you never want to “imply” anything about your contract terms or formation process.] Furthermore, ATP can’t be a third party beneficiary of the Allnurses/user contract because “by this logic, the entire world is an intended beneficiary of the TOS. That cannot be right.” The promissory estoppel workaround fails because the TOS terms are too indefinite.

Case citationEast Coast Test Prep LLC v. Allnurses.com, Inc., 2018 WL 614732 (D. Minn. Jan. 29, 2018)

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Section 230 Helps Defeat Product Liability Claim

A retractable leash permanently injured the plaintiff’s eye. She bought the leash from an Amazon Marketplace merchant. She sued Amazon for various products liability claims. The court says no. First, the court says Amazon wasn’t the seller of goods in its marketplace. Sorry this passage is so painful, but don’t shoot the messenger:

Like an auctioneer, Amazon is merely a third-party vendor’s “means of marketing,” since third-party vendors—not Amazon—“cho[o]se the products and expose[ ] them for sale by means of” the Marketplace. Because of the enormous number of third-party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly “not equipped to pass upon the quality of the myriad of products” available on its Marketplace. And because Amazon has “no role in the selection of the goods to be sold,” it also cannot have any “direct impact upon the manufacture of the products” sold by the third-party vendors.

The Amazon Marketplace serves as a sort of newspaper classified ad section, connecting potential consumers with eager sellers in an efficient, modern, streamlined manner. Because subjecting it to strict liability would not further the purposes of § 402A, as revealed by Musser and other Pennsylvania cases, it cannot be liable to the Oberdorfs under a strict products liability theory.

Calling Amazon Marketplace a “classified ad section” is definitely defense-favorable, but it’s a weak analogy that other courts would reject. See Airbnb v. San Francisco. Regarding Section 230, the court says:

Since the Oberdorfs’ claims for strict products liability, misrepresentation, and breach of warranty have all been disposed of supra, this Court need only consider Amazon’s CDA argument with respect to the Oberdorfs’ negligence and negligent undertaking claims. Although the Complaint frames those claims broadly, it is clear from the Oberdorfs’ papers that they are, in fact, attempting to hold Amazon liable for its role in publishing an advertisement for The Furry Group’s product. In other words, the Oberdorfs are attempting to “treat[ Amazon] as the publisher or speaker of…information provided by” The Furry Group.

Uncited cases in this genre include: Inman v. Technicolor, McDonald v. LG (reaching a different conclusion on Section 230), Hinton v. Amazon, and Englert v. Alibaba.

Case citation: Oberdorf v. Amazon.com, Inc., 2017 WL 6527142 (M.D. Pa. Dec. 21, 2017)

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Publicity Rights Claim Preempted by Section 230 in a Court Outside the 9th Circuit

 

Case citation: Parker v. PayPal, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017)

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/04/recapping-a-years-worth-of-section-230-cases-that-got-stuck-in-my-blogging-queue.htm  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

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