Recent Blog Posts Discussing Section 230

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

The DMLP submitted an amicus curiae brief (pdf) last week to the Sixth Circuit in the case of Seaton v. TripAdvisor, LLC. The case concerns TripAdvisor’s 2011 “Dirtiest Hotels in America” list. The list, which was based on travelers’ ratings for cleanliness on TripAdvisor, named the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee the dirtiest hotel in America. Kenneth Seaton, the hotel’s owner, subsequently filed a claim for defamation and false light. The U.S. District Court for the Eastern District of Tennessee granted TripAdvisor’s motion to dismiss the claim, holding that the statements at issue were purely subjective opinion and unverifiable rhetorical hyperbole. Seaton appealed the dismissal of his defamation claim to the Sixth Circuit.   read more »

A Tulsa, Oklahoma girl and her mother are suing Booker T. Washington High School and Twitter, alleging that another member of the daughter's basketball team held the daughter while another teammate took pictures of her in her underwear, and sent the photos as tweets.

The lawsuit says that several other children at the school received and re-tweeted the photos, leading to harassment of the victim. The suit, which also names the teammates and their parents as defendants, seeks damages of at least $75,000.

The claims against the school are negligence and negligent supervision of the students. Against the girls who allegedly held the victim down and took the photos, the lawsuit makes claims of intentional infliction of emotional distress, assault, battery, and two invasion of privacy claims. The claims against their parents are negligent supervision and negligent entrustment (for giving their daughters cell phones).

Against Twitter the claims are negligence, intentional infliction of emotional distress and invasion of privacy. The suit claims that Twitter owed the victim and her mother "a duty ... to use reasonable care in the administration of its website so as to prevent the publication of photographs of minors while undressing, particularly when said photographs are posted on Defendant's website by multiple users over the course of several weeks."   read more »

The trafficking of children for sex in the United States is an appalling and very real problem, which a new Washington state law means to eliminate by targeting websites that offer classified advertising for escort services. But many fear the law poses a serious threat to free speech on the Internet by imposing upon online service providers the burdensome duty to monitor, vet, and otherwise censor third-party content.

Signed into law earlier this year, Washington Senate Bill No. 6251 creates the felony offense of "advertising commercial sexual abuse of a minor." Though the bill does not explicitly reference Backpage.com, there is little doubt that the Village Voice Media Holdings site was the impetus for the law. Backpage.com has generated a veritable furor by refusing to nix its adult section, to which personals featuring underage prostitutes are posted at a frequency subject to considerable debate. During hearings on the bill, a member of the Washington state legislature announced that she would "love to see the escort services section [of Backpage.com] shut down completely." The law was also touted as a landmark in the years-long offensive by state attorneys general condemning Backpage.com for not doing enough to prevent exploitation of minors via the site.    read more »

Let's start with the following premise: thedirty.com is a tasteless website. In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site's proprietor.

The site has been sued a number of times for postings making scurrilous allegations. One of these lawsuits was brought by Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, who sued over postings (now removed) on thedirty.com which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones now has bigger problems: she was arrested in March on charges of sleeping with one of her students. She has pleaded not guilty.)

Jones originally filed the suit anonymously. She mistakenly named thedirt.com – rather than thedirty.com – as the defendant, leading to a default $11 million verdict.    read more »

As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations. Although there has recently been movement in the IRS, with a number of organizations obtaining their tax exemptions over the past several months, others continue to wait for decisions delayed two years or more.

One possible reason for these delays is an increase in the numbers of journalism organizations seeking to operate on a nonprofit basis, at the same time that the IRS is likely reviewing its existing precedential decisions relating to news and publishing ventures. As our guide to the IRS's decision-making process discusses, many of the key precedents that the IRS relies upon in these cases date back as far as the 1960s, 1970s, and 1980s. Given that not only the news business, but the very nature of communication, has changed dramatically in the last fifty years, it would be reasonable for the IRS to take another look at these decisions when faced with a new wave of online journalism projects.

That being said, we have recently learned of a somewhat disturbing development in this regard. At least one applicant for 501(c)(3) status has been questioned by the IRS relating to user-generated content posted to the applicant's site as follows:

Will you allow individuals to post content directly to your website? If so, will you hold the content in queue until you review it to determine whether it would constitute intervention in a political campaign?   read more »

Despite the welcome 7th Circuit decision in ACLU v. Alvarez on May 8 that directed a federal district court to enjoin the application of the Illinois eavesdropping statute to an ACLU police accountability program, citizens around the country remain vulnerable to arrest and harassment for recording audio and video of police in public spaces. Cases like Glik v. Cunniffe and Alvarez indicate that the tides are changing in favor of First Amendment protections of police oversight and, in Illinois, at least two county court judges have also found the Illinois eavesdropping statute unconstitutional.  Some, like the ACLU, have launched initiatives to publicly record audio and video of police conduct, and the Alvarez case was pursued by the ACLU specifically to allow ALCU staff to legally record police without fear of reprisal under the eavesdropping statute.  (Interestingly, this decision comes just as Chicago is bracing itself for violent protests during the NATO summit this weekend.)   read more »

Any customer can have a car painted any colour that he wants so long as it is black. - Henry Ford

So the Congress appears to be considering the Combating Online Infringement and Counterfeits Act ("COICA") again. The act would essentially allow the government “to block sites at the domain name (DNS) level” (per Ars Technica) and would impose intermediate liability on credit card companies that did not stop transacting with blacklisted sites.  This (much like a jump to conclusions mat) is a terrible, terrible idea.  

Let’s imagine for a second that there actually exists such a dire piracy problem posed by rogue sites that we need to risk tinkering with the basic structure of the internet.  The government has not done a great job with arbitrary domain seizures, COICA might undermine the safe harbor offered by Section 230 of the Communications Decency Act ("CDA 230"), and DNS intervention will at best be ineffective and at worst threaten the stability of the internet.   read more »

As many of you who read this blog know, we spend a lot of time thinking about -- and sometimes debating -- section 230 of the Communications Decency Act.  We've often lamented, however, that there isn't a good compilation of all of the 230 cases (Eric Goldman, the dean of the 230 bar, has covered most, if not all, of the cases, but you have to sift through his excellent blog to find them).  Well, back in 2008, I set out to create just such a compilation and after months of wrangling with my editors, the empirical study that research spawned is finally out in the current edition of the Loyola of Los Angeles Law Review.

I won't recount the entire article in this post (it's available as a PDF on SSRN), but I will highlight a few of the more interesting findings.  First, here is the abstract:

In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law's distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.   read more »

Last Monday, the New York Times ran an article about T&J Towing's lawsuit against a college student, Justin Kurtz, over a Facebook group page he started called “Kalamazoo Residents against T&J Towing.” Several other news outlets and blogs have picked up the story, in no small part due to its David-and-Goliath appeal. 

Kurtz apparently created the Facebook page days after T&J towed his car from the parking lot of his apartment complex. On the page, Kurtz claims that T&J removed his parking permit and improperly towed his car. Other Facebook users have chimed in—the group now has over 13,800 members, many of whom have posted comments about their own negative experiences with the company.   read more »

Techdirt first drew our attention to Google's recent legal troubles in Brazil over its Orkut social networking site (which, as Mike Masnick says, is—mysteriously—only popular in Brazil). The case has gotten a lot less attention than the whole Italy kerfuffle, perhaps because it lacks the drama of a court holding executives personally accountable. But, the Brazilian case presents some obvious parallels with the Italian convictions, and it further underscores the importance of strong legal protections for intermediaries in preserving freedom expression and promoting innovation online. 

Press accounts report that, on Tuesday, a Brazilian court fined Google for failing to block Orkut pages containing dirty jokes that "offended" two teenagers. The court imposed a $2700 fine for each day that the offending pages remained up and ordered Google to stop similar material from being posted in the future.  Ironically, the court apparently cited Google's censorship of material in China as proof that it was feasible to do so in Brazil, leaving out Google's showdown with China and its ultimate decision to pull out of China altogether.    read more »

I've no doubt that CMLP blog readers, fellow netizens that you are, are well aware of an Italian court's conviction last week of three Google executives for invasion of privacy of an Italian teenager. 

(In case you missed the story, here it is in short: the teenager (who either suffered from Down's syndrome or autism; reports differ) was filmed by four other teens who were bullying him, and the bullies posted the video on YouTube.  Google promptly removed the video after receiving a formal complaint. Italian authorities then criminally prosecuted four Google execs for defamation and invasion of privacy.  Last week, the Italian court found three of the execs guilty of invasion of privacy; the defamation charges were dropped against all four.  More back-story can be found in my 2008 post when the possibility of charges was first announced.)

Of course, Google is apoplectic. Much of the rest of the media world is too: Mathew Ingram of gigaom.com rounds up:   read more »

I understand you're upset, Philadelphia.  Plans for a "flash mob" snowball fight last week got out of control.  Scores of teenagers stormed a local mall and nearby streets vandalizing stores and beating the hell out of each other.  It's embarrassing for you, especially because it's happened before.  It must be frustrating too because you identified the problems that can occur when large crowds gather at the Gallery at Market East. And then, just several days after your city officials and businesses meet to discuss those problems, this happens.  Sure, you arrested 16 of the students responsible, but the damage is done, hundreds of dollars worth.  Someone needs to pay.   read more »

Just over a year ago, the rumormonger—and some would say defamatory—website JuicyCampus.com shut down. At the time, I wrote "there's one (and only one) downer to Juicy Campus' shutdown . . . a lawsuit against Juicy Campus could have served as a very interesting test case for the limits of Section 230 immunity."

Ladies and gentlemen, a new contender has stepped into the ring!  Say hello to PleaseRobMe.com!

The premise for this website is brilliant, even if potentially a litigation risk.  PleaseRobMe.com ("PRM") aggregates Twitter posts indicating that the Tweeter in question is not at home.  The folks at PRM aren't doing anything sneaky or hacker-like—they're just doing a simple Twitter search of anyone using foursquare.com—a site that lets Tweeters post their locations on a street map.  The only thing that PRM is adding to the mix is framing content that snarkily suggests that these Tweeters aren't home, and thus, perhaps, would be good targets for robbery.

Lest you get the wrong idea, PRM isn't trying to encourage robbery (technically, we're probably talking burglary).  They claim that they're underscoring the danger of blithely putting location information online for all the world to see:    read more »

If you're a fan of high-tech gadgets or Internet drama, you might have noticed the brouhaha brewing at Engadget this week. Long known for its comment sections ranking just above the YouTube level on the scale of man's inhumanity to man, the site prompted a new wave of bile last week with its coverage of Apple's iPad announcement. After mocking the anti-Apple commenters failed to stop them, Engadget disabled its comments Monday.

This is all well and good, of course — it's up to Engadget to decide whether and how it will offer a commenting function. Some of the coverage of Engadget's decision, however, didn't quite get this right. Wired's Epicenter blog suggested that Engadget was forced to disable commenting completely in order to avoid legal liability for what its commenters posted. “The one thing publications can't do,” he wrote, “is edit comments.” Fortunately for online publishers of all stripes, Epicenter was mistaken. Section 230 of the Communications Decency Act (“Section 230”) shields website operators who exercise normal editorial control over their users' content, and this includes editing the content of the comments themselves.   read more »

[A]ll it takes to kill a show forever, is to get one episode pulled. If we convince the network to pull this episode for the sake of Muslims, then the Catholics can demand a show they don't like get pulled . . . and so on and so on, until Family Guy is no more - it's exactly what happened to Laverne & Shirley.- Eric Cartman, South Park , Cartoon Wars I

It doesn’t take much to whittle away a law. One need only use the Cartman technique – ask for one exception and wait for others to follow. It is death by a thousand cuts on the legal stage.   read more »

I am constantly impressed with plaintiffs' hapless charges against the nearly impenetrable immunity that is Section 230 of the Communications Decency Act (“Section 230”).  Time and time again, angry plaintiffs bring suit against websites because some unknown third party posted questionable, if not illegal, material.  And time and time again, those claims are stymied by Section 230, which grants the websites immunity from liability for those third-party postings.  Seriously, there are loads of these cases, and they almost always fail — why do plaintiffs keep bringing them?   read more »

Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

Rather surprisingly, Finkel also sued Facebook, claiming that the über-popular social network should be held liable for publishing the defamatory statements because it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. Complaint ¶ 28.  (The complaint also alleges that the students' parents are liable for negligently failing to supervise their children.)

As Eric Goldman presciently noted at the time, "[w]ith respect to the claim against Facebook, this lawsuit is unquestionably DOA."  After all, even a cursory reading of the complaint demonstrates that Facebook qualifies for protection under Section 230 of the Communications Decency Act. Indeed, our database is littered with the wreckage of similar claims filed against social networks that ran aground on Section 230's protective shoals.   read more »

On this blog, I typically write about frivolous or ill-considered lawsuits. In the long, long ago, before I came to law school, I wrote about video games. So imagine my unbridled joy upon reading that Jack Thompson (think: King Richard I of the Anti-Video Game Crusade) filed a pointless, dead-end  lawsuit against Facebook.  Let the Games Begin!   read more »

IP Osgoode alerts us to an interesting decision from the Court of Appeal for British Columbia that has important implications for online speech in Canada.  In an opinion issued earlier this month, the Canadian court held that Jon Newton of p2pnet news could not be held liable for linking to allegedly defamatory articles written by others about politician Wayne Crookes. The appellate ruling upheld a lower court decision last fall dismissing Crookes' case against Newton.

In much the way CMLP often does, in 2006 Newton published a blog post about a defamation lawsuit brought by Crookes against Michael Pilling, who runs OpenPolitics.ca.  In his post about the lawsuit, Newton linked to the allegedly defamatory articles in question on OpenPolitics.ca, as well as to an article posted on another website.  Newton did not reproduce or comment on any of the allegedly defamatory material.  Here's the important passage:   read more »

Even though Glenn Beck has a prime spot on cable television to offer up his beliefs, it's sometimes quite hard to understand what his beliefs actually are.  For example, as Jon Stewart has pointed out, he believes we have the best healthcare in the world, except when he says it's a nightmare.  Or as Politico underscored, he believes that President Obama is a racist, but he doesn't believe that Obama doesn't like white people.

But if there's one thing Beck believes, it's that he didn't rape and murder a young girl in 1990.  And he's siccing his lawyers on a website that asks him — with tongue firmly placed in its virtual cheek — to deny it.   read more »