Broad Immunity Provided by Section 230 of the Communications Decency Act Should be Protected

From Wikipedia to Google, and Facebook to Yelp, many of the country’s biggest tech giants build their platforms on user-generated content, which can inject user subjectivity into the business space. Such content can be potentially defamatory in nature, but until recently, the legal landscape has been relatively consistent in preventing misappropriation of the blame on the platforms that share and promote user-generated information.

In Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. 1995), the court held that Prodigy, an interactive computer service, was liable as a publisher for defamatory statements posted on its website by one if its users. Congress felt that this was the wrong conclusion – the Stratton decision conflicted with an earlier case, Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), where the court found that CompuServe, an online service provider, was not liable as a publisher for user-generated content. The main difference between CompuServe and Prodigy was that Prodigy had engaged in content screening, thereby exercising editorial control. Congress feared that Good Samaritan service providers would be deterred from blocking and screening offensive material by the possibility of liability. Thus, Congress enacted Section 230 of the Communications Decency Act to provide broad immunity to “forbid the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.” Barrett v. Rosenthal, 146 P.3d 510, 516 (2006) (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).

Broad Immunity Granted to Internet Computer Services

Section 230 of the Communications Decency Act provides that “[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.” 47 U.S.C. § 230(e)(3). Since its passage in 1996, Section 230 has generally been construed to give Internet Service Providers (ISPs) immunity from tort liability for third-party speech. Barrett, 146 P.3d 510. In addition to ISPs, a broad range of interactive computer service providers, like online services that publish third-party content, are also granted that immunity. 47 U.S.C. § 230. This provision has enabled websites like YouTube, Wikipedia, and Yelp to widely disseminate user-created content freely without fear of a lawsuit.

The court in Atlantic Recording, 603 F.Supp.2d 690 (S.D.N.Y. 2009), noted that “courts across the country had repeatedly held that Section 230’s grant of immunity should be construed broadly.” In Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y. 2009), the court clarified that Section 230 would not provide “blanket immunity” to interactive computer services; instead, it would simply provide immunity when an interactive computer service was treated as a publisher or speaker of third-party content regarding a state law cause of action. Because the claims in question sought to treat the interactive computer service, which had engaged in monitoring, screening, and deletion of content, “as a publisher or speaker of third-party content,” the court granted Section 230 immunity to Craigslist. Id.

Threats to Section 230’s Broad Immunity

2016 was a tough year filled with many threats regarding Section 230’s broad immunity. Recently, Hassell v. Bird, 203 Cal. Rptr. 3d 203 (2016) has caught the attention of many key players, such as Google, Facebook, the Electronic Frontier Foundation, the American Civil Liberties Union of Northern California, and more, that expressed concerns that this California Court of Appeals opinion would significantly affect the scope of Section 230 immunity and enable litigants to suppress protected speech. See Amicus Letter of ACLU of Northern California, Electronic Frontier Foundation, and Public Participation Project supporting request for review in HASSELL v. BIRD., 2016 WL 4426023 (Cal.). As of late September, this case has been granted review.

Hassell v. Bird came about after a negative review was posted on Yelp about attorney Dawn Hassel and her firm Hassell Law Group. Ava Bird retained Dawn Hassell as her lawyer, was displeased by the service she received, and allegedly posted negative reviews on Yelp under the usernames “Birdzeye B” and “J.D.” When Hassell sued Bird for defamation, among other things, Bird defaulted, allowing Hassell to present her arguments uncontested. The court ordered Bird “to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from [Y]elp.com and from anywhere else they appear on the internet within 5 business days of the date of the court’s order.” Hassell v. Bird at 211. The court additionally ordered Yelp “to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ . . . and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.” Id. Yelp refused to remove the reviews and eventually intervened in court.

The Court of Appeals stated that the relevant question in the appeal was whether the trial court had the legal authority to make the removal order directing Yelp to remove Bird’s defamatory reviews from Yelp.com. Id. at 218. Before this opinion, no California case had approved an injunction that expressly named a non-party to litigation and subsequently affected that nonparty’s distinct rights without providing notice and an opportunity to be heard, unless evidence shows that the non-party aided and abetted the party in evading the injunction. Reply in Support of Petition for Review, 2016 WL 4419529 (Cal.) (Appellate Brief); Planned Parenthood Golden Gate v. Garibaldi, 107 Cal.App.4th 345, 352-53 (2003) (stating California law empowers the court to enforce its judgment by ordering that an injunction run to a non-party through whom the enjoined party may act). Thus, Yelp argued that the Court’s order for the non-party to remove reviews from its website was improper and that because it was a non-party to the original suit, did not receive notice, and did not have a chance to defend the allegedly defamatory statement, it was unable to exercise its due process right to challenge attempts to infringe their First Amendment right to publish third-party speech on its website. Hassell at 212. Yelp further argued that the removal order was barred by Section 230 because it treated Yelp as a publisher and imposed liability on Yelp by finding them in contempt of court for choosing not to remove the information on the site. The court rejected all of these arguments, pointing out that the complaint was filed against Bird, not Yelp; that the default judgment was obtained against Bird, not Yelp; that the damages and injunctive relief were awarded against Bird, not Yelp; and that as a result, liability was not imposed on Yelp in violation of Section 230. Id. at 225. In other words, the court held that only injunctions, not removal orders would be improper against a default judgment against a party and would be barred by Section 230.

Thus, the Hassell ruling says that because the defamation ruling was against Bird, and not Yelp, Yelp has lost its ability to assert its basic due process rights. The court has essentially cleared a path for future plaintiffs to evade Section 230 by denying website publishers their due process rights. Plaintiffs could circumvent the protections provided by Section 230 and get rid of unwanted speech simply by obtaining an ex parte injunction against an interactive computer services provider. The integrity of review sites, as well as other online publishers of third-party content, could be destroyed if third-party content could be removed without determinative findings of whether a statement was actually defamatory because real opinions could be suppressed. In the context of any reviews site, this could prevent consumers from being able to make educated decisions about the products they buy, the employers they want to work for, and the services they want to hire. More generally, interactive computer services, should they face liability for the content posted by their users, would likely protect themselves by actively monitoring user content and being less willing to post controversial topics, thereby restricting access to information. This ruling not only significantly diminishes the free flow of information online, but also chips away at a service’s ability to assert its own due process rights to defend and maintain the integrity of its publications.

Moreover, California law defines an injunction “as a writ or order commanding a person either to perform or refrain from performing a particular act.” People v. Brewer, 235 Cal. App. 4th 122, 135 (2015) (quoting McDowell v. Watson, 59 Cal. App. 4th 1155 (1997)); see C.C.D. § 525. Similarly, a removal order is an order that commands a party to perform a particular act – that is, to remove information. Upon review, the California Supreme Court should recognize that a removal order that could result in a contempt proceeding imposes liability on an interactive computer service in the same way that an injunction would, and thus should be seen as a violation of Section 230. Otherwise, the reach of ex parte injunctions would be significantly expanded while the protections of Section 230 would be significantly narrowed.

For the above reasons, the broad immunity provided by Section 230 of the Communications Decency Act should not be unduly narrowed. The provision protects freedom of expression and innovation the internet. Rather than allowing one disgruntled business owner to jeopardize due process and the free flow of information online, a business owner who feels wronged by a negative online review should find recourse by responding to the criticism in a mature and professional way, flagging the comment, and letting other reviews speak to the qualities of an entity’s service.

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