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How Broad Is Web Publisher Immunity Under §230 of the Communications Decency Act of 1996?

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Illustration of computer screen and measuring devices// by Joe McFadden Over the past decade, more and more lawsuits have been filed against online publications, dispelling the myth that such information is not subject to a variety of legal actions. There are many reasons for the increased lawsuits — more powerful, interactive Web sites, more content, more money in the industry, and more plaintiff’s lawyers following that growth and filing individual and class action lawsuits. The increase in lawsuits has raised the possibility of exposure to a number of legal claims and upped the stakes in publishing online material. This means, for better or worse, Web publishers1 & #x2014; including newspapers, magazines, and other traditional print publications with increasing digital readership, reporter blogs, and reader postings — must be up to date on their rights and responsibilities and potential liabilities.

Among the most important laws relating to online liability is §230 of the Communications Decency Act (CDA), which offers powerful immunity2 to online publishers who are entitled to its protection. Passed in 1996, §230 was designed to protect Internet providers from liability for defamatory and other unlawful messages on their servers in an effort to nourish formation of the early Internet and open and robust information exchange.3 The general idea is that immunity can be appropriate because while Internet providers share some similarities to edited print publications like newspapers, which are held accountable for third-party content, they also have attributes of common carriers like telephone companies that serve as passive conduits of third-party information and, as such, are not held responsible for what is said.

Section 230 has been interpreted to preempt inconsistent state law claims and block liability for not only defamation claims but also other state law claims, like infliction of emotional distress, negligence, public nuisance, civil theft, invasion of privacy, securities law violation, fraud, and cyberstalking. Thus, understanding how and when this federal immunity applies is crucial in gauging an online publisher’s risk of liability for a variety of state law claims.

Since its passage, a substantial body of case law has evolved around the immunity provision that helps explain its application to the many factual situations facing interactive service providers and users. In addition, state courts — including the Florida Supreme Court — have weighed in with their own interpretation of §230.4 A s the case law has evolved with many broad interpretations of §230 immunity, it also appears based on a handful of recent cases that this may be changing in a few distinct areas. This has left providers of digital information, especially smaller operation bloggers and platforms, sometimes unaware or confused about their potential liability in presenting online material. So, too, plaintiffs and perhaps their attorneys, question their ability to bring a lawsuit over an objectionable posting.

This article provides a brief review of the landscape of §230 immunity. It begins by discussing the background and current state of the law regarding immunity. It then summarizes some of the leading cases that illustrate situations where a Web publisher can most likely rely on immunity. Finally, the article addresses three areas where immunity can be lost or may be viewed critically, thus, requiring greater care on the part of online services seeking to avoid liability.

Background of §230 Immunity
The CDA immunity for Web site providers stems from the following provision: “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.”5 The term “information content provider” is defined as “any person or entity that is responsible, in whole or in part, for the creation or developmentof information provided through the Internet.”6 These provisions have generally been interpreted to give Web site publishers immunity from lawsuits based on objectionable content posted by third-party users.7 The provisions are designed to “preclude courts from entertaining claims that would place a computer service provider in a publisher’s role.”8 However, the Web site remains liable for content it “created or developed in whole or in part.”9

It is important to recognize that a single Web site operator can be both a service provider passively displaying information and immune from liability, as well as a content provider potentially liable with respect to other content it creates or develops.10

Current Law: Immunity Interpreted Broadly
The immunity provision generally has been interpreted broadly, and most courts consider it a virtually complete prohibition on lawsuits against Web sites for disseminating third-party content.11 Courts have extended immunity not just to the large Internet service providers like America Online (AOL) and eBay, but also to individual Web sites and electronic bulletin board operators and bloggers that post third-party information.12 Courts reason that such broad immunity furthers the law’s purpose to protect Web sites from liability from lawsuits that might otherwise arise from the millions of users posting on their sites, which they cannot reasonably screen.13

In keeping with this broad view of immunity, courts have usually narrowly construed the sort of §203(f)(3) “creation or development” activities a provider must engage in for the content to be deemed its own and thereby capable of destroying its immunity. Immunity, for example, is not lost where a service provider merely exercises its editorial and self-regulatory functions regarding the third-party content.14 Even when the provider has an active, aggressive role in making available content prepared by others, immunity will remain.15 Keep in mind that in determining if the Web site has become an information content provider, the court is only interested in the Web site material or contribution that is connected to the objectionable posting at issue.16

Plaintiffs have attempted to limit immunity by arguing that Congress never intended §230 to extend to Web sites they categorize as “knowing distributors” of the objectionable information, which they argue are distinct from immune publishers. Federal courts, however, have largely, if not uniformly, rejected this distinction. One of the earliest examples is the Fourth Circuit Court of Appeals in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), in which the court found distributors to be merely a subset of publishers and, therefore, similarly immune. The Florida Supreme Court several years ago in Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001), relied on Zeran’s rationale regarding tort claims brought against AOL for allegedly distributing child pornography. Although the court adopted Zeran’s view that immunity applied to distributors like AOL, it is interesting to note that a three-judge minority strongly disagreed, asserting that Zeran results in “carte blanche immunity for wrongful conduct plainly not intended by Congress.”17

This broad statutory immunity does not apply without limitation: Congress attached several exceptions to immunity in §230(e). One of these exceptions covers “intellectual property laws,” which has been viewed broadly by some federal courts,18 and arguably carves out immunity to allow for a right of publicity lawsuit against revenue generating Web sites for posting noncelebrity gossip.19

Situations in Which Immunity Has Been Applied
Since Zeran and Doe v. America Online, many other federal and state appellate courts have weighed in on §230 and, for the most part, confirm the view of broad immunity. Some of these cases are cited below to illustrate Web activities a provider can undertake without undue risk of liability.

Hosting of Third-party Content — Simply hosting third-party content is clearly allowed. This includes providing links to third-party content, such as message board posts.20

Reposting of Third-party Content — Some Web site operators post statements or user profiles on other Web sites with “slight” modification in the form of teasers or advertisements. Courts have held that this reposting does not result in lost immunity because §230 prohibits the operator from being treated as the publisher of the third-party content, even if the operator decides to post that content elsewhere.21 Immunity “depends on the source of the information in the allegedly tortious statement [i.e., the creator of the profile], not on the source of the statement itself.”22

Providing Traditional Editorial Functions — As mentioned earlier, a service provider or Web publisher will not lose immunity for retaining the right to edit content or actually editing content.23 Editors, for example, may make minor changes to the spelling, grammar, and length of third-party content.24 Traditional editorial functions are protected, including deciding whether to publish, withdraw, postpone, augment, or alter content.25 Also, failure to verify the accuracy of a listing26 or the failure to remove unauthorized profiles27 are squarely within the publisher’s editorial function and are protected by CDA immunity. This editing right will remain in place as long as there is no substantial altering of the meaning of the original statement so as to contribute to the libelousness of the message. It does not matter whether the editing decision is directed to publishing material in the first place or to removing it among already published material.28 Immunity for editorial functions will not be defeated by a plaintiff couching its claim against the provider as a “failure to protect” or “failure to take safety measures” negligence claim.29

Screening Prior to Publication — A Web site’s screening and standard-setting activities in distinguishing content that should be published from content that should not (e.g., indecent or libelous material) fall within publishers’ traditional editorial functions and will not threaten immunity.30 That is, the fact that the Web site provider has policies and procedures or contract provisions to police its network does not lead to the conclusion that the Web site operation is responsible for the content created by the third party.31 Conversely, if self-regulation is not attempted at all, immunity is still available.32 However, if the Web site goes beyond setting standards or promising to remove unauthorized material and actually makes specific promises or affirmative representations about a certain service or product on the Web site (such as promises that live auctions are “safe” and involve “floor bidders”), immunity can be lost.33 Such statements create an expectation regarding the procedure and manner in which the service will be conducted, and, therefore, go beyond traditional editorial discretion.34

As a separate and additional ground to §230(c)(1), courts have said that §230(c)(2) may insulate providers who screen material, even those who develop content. Section 230(c)(2) says that immunity extends to a provider’s “good faith” actions voluntarily taken to restrict access to material that the provider considers “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”35 While this language can offer immunity in terms of restricting or screening sexual or violent material, some courts have resisted using the “otherwise objectionable” wording to expand this immunity to business-type activities (e.g., eBay’s removal of coin auction items).36

Providing Neutral Tools to Create Content — A Web site operator providing neutral tools to users (like search engines, platforms for user-created profiles, chat rooms, and music players to listen to or upload songs) to create Web content is immunized, even if the operator knew or “passively acquiesced” to a third party’s use of such tools to create illegal content.37 Although a particular tool “facilitate[s] the expression of information” (e.g., a menu of pre-prepared responses), it generally will be considered “neutral” so long as users ultimately determine what content to post. Tools that merely provide a “framework that could be utilized for proper or improper purposes,” do not void immunity.38

Web Site Elicits for Profit or Pays for Third-party Content — The Web site’s act of eliciting, soliciting, or paying for online content is immaterial unless it materially contributes to any alleged illegality.39 It is entirely appropriate for a Web site to have subscribers disclose as much about themselves and their preferences as they are willing to provide.40 In one case, AOL was found to be immune despite active solicitation and payment of an online column by Matt Drudge.41 In another case, eBay was immune from liability for allegedly fraudulent postings despite its receipt of placement fees for use of an auction service.42

Failure to Remove Posting Defamatory Material After Notice — What if the provider is notified or otherwise knows that the third-party information contains illegal content and fails to remove it? Courts have held such notice does not remove the publisher’s shield from liability.43 Some courts say this rule applies even where it is not a third party but the actual author who changes his or her mind and requests removal.44

Heightened Scrutiny of Immunity: An Emerging Trend?
In contrast to the trend of broadly construing §230, recently some courts, upon close examination of the language, have ultimately found immunity not available. The most illustrative of these cases are two federal circuit courts of appeal decisions that seem to draw a line in the sand on how far immunity should extend to actions against platforms involved in illegal content. This scrutiny is perhaps in part driven by a reaction to the growing landscape of Internet publication amid reports of free-wheeling Web sites carrying libelous, illicit, or privacy-invading postings without adequate recourse for those allegedly harmed. For example, controversial Web sites providing a forum for anonymous gossip and cyber-bullying postings may arguably contain First Amendment-protected information, but they also allow for easy, free, and immediate posting of damaging personal information that may not be true.45 Some critics argue that in light of Internet expansion and increased potential for abuse, immunity is really not necessary to protect some areas of the medium, but in fact can lead to harm, and, therefore, should be replaced with the traditional libel framework.46 As federal circuit courts have observed, the CDA was not meant to create “a lawless no-man’s-land on the Internet,”47 nor is it a “general prohibition of civil liability for [Web] site operators and other online content hosts.”48 These ongoing concerns appear to be providing impetus for judicial tightening of immunity in some federal circuits in a handful of situations.

Here are some areas where Web site publishers and platforms should take special care in determining what they display.49

Mixed Use: Significant Changes to Third-party Content by Web Site — If a Web site changes objectionable third-party postings materially or mixes them with their own, it may itself become a “content provider” and lose immunity. To do this, the Web site or provider must make significant edits that go “beyond the traditional publisher’s role” as when the provider “takes an active role in creating or developing the content at issue.”50 For example, if a Web provider removes the word “not” in the message “Jane Doe did not steal the Hope Diamond,” the provider is not immune from a defamation claim.51 So, too, if a service provider creates its own comments and other defamatory content to accompany third-party profiles on its Web site, immunity can be lost.52

An example of mixed use involving disparaging titles or headings to posted information is found in MCW, Inc. v., LLC, 2004 U.S. Dist. LEXIS 6678, No. 3:02-CV-2727-G at *26 (N.D. Tex. April 19, 2004). In that case, the operators of a Web site called “The Rip-Off Report” provided a consumer complaint forum, which included defamatory messages about the plaintiff in the form of titles, headings, and editorial messages personally written by the Web site operators. Since the plaintiff’s claims were based on the operator’s content in the form of titles and headings, not on the posted information by third parties, immunity did not protect the operator.53

However, a Florida federal district court noted that the case for voiding immunity is weakened if the objectionable titles, headings, or categories are not independently created or selected by defendants to describe the posting. Merely supplying categories from which a poster makes a selection does not arise to the level of content provider.54

Bloggers in particular should be sensitive to the parameters of the CDA when the platform allows for some variation of mixed use. A blogger can be both a user and a provider of an interactive computer service. They are a user when they create and edit blogs through a service provider, and they are providers when they allow third parties to post messages or add comments to their blogs.

Generally, as alluded to earlier, posts by third parties on a blog site or reposting of information received from Web feed formats is “information provided by another content provider,” and the blogger/provider is protected against liability relating to that information. The immunity is lost, however, if the blogger creates some or all of the material on his or her site.55 Similarly, if a posted message becomes a collaborative effort, immunity can be lost. This was the outcome in an Arizona case where a hotel chain sued several individuals who posted anonymous, allegedly defamatory blogs on an Internet site created and operated by some of the individual posters. The defendant bloggers said they were immune from the posts of those e-mails received from others because they did not create or develop the posts. The court, however, disagreed with respect to one of the defendants, refusing dismissal because this person may have destroyed her CDA immunity by collaborating with her husband and fellow poster and becoming responsible for “part” of the statement posted to the Web site.56

Encouragement or Solicitation of Illegal Content — The most important area in which immunity can be lost actually arises when there is no mixed use at all, and it is solely a third party who submits a piece of information with no input or change by the provider. This liability arises where the site is found to directly “encourage” or “contribute” to illegal content, such as by designing the Web site with drop-down forms that require the user to input discriminatory or other illegal content.57

This limitation on §230 immunity was articulated in the well-publicized case, Fair Housing Council of San Fernando Valley v., LLC, 521 F.3d 1157 (9th Cir. 2008), which centered on whether the fair housing laws, which apply to ads in traditional print publications, also apply to digital ads. The Web site platform in that case had mandatory profile questions and a drop-down menu of answers used to obtain certain demographic information from subscribers. creating the mandatory questionnaire, the court said that the Web site operator became an information content provider of the information.58 The court essentially adopted a looser view of what it takes for a publisher to “develop” content (meaning not just “augmenting the content” but also “contributing to its unlawfulness”), and thereby more easily transformed them into an “Internet content provider” responsible for the objectionable information.59

The court made it clear, however, that the part of the Web site that merely provided a blank text box for users to personalize their profile by describing themselves and the type of roommate sought did not make the Web site operator an information content provider.60 Rather, this part of the site did have immunity because it did not contain directions on what the box should contain or urge subscribers to input illegal content.61

Encouraging illegal content as a ground for undercutting immunity was also found more recently by the 10th Circuit Court of Appeals in FTC v. Accusearch, Inc., 570 F.3d 1187 (2009). In that case, defendant ran a Web site that paid researchers to obtain private phone records that defendant knew were confidential and being illegally obtained under federal law. The court indicated that immunity falls away when the entity creates an online platform that it intends to be overwhelmingly filled with some identifiable illegal content. That is, the service provider was “responsible for the development of the offensive content” by “specifically encourag[ing] development of what is offensive about the content.”62

This can be a confusing area in terms of predicting potential liability. Suffice it to say, soliciting or encouraging information that might be objectionable should raise the online publisher’s risk aversion antenna. On one hand, if there is solicitation and some of the material happens to be illegal, this will very likely not remove immunity. For example, a Web site like a dating site that simply classifies users by their voluntary input of personal or other characteristics does not transform it into a developer of any of the underlying material that might be deemed to be objectionable.63 Similarly, an online classified ad service like Craigslist does not contribute to violation of Fair Housing Act laws because nothing in Craigslist induces or encourages those posted listings for sales or rental to add discriminatory preferences in violation of the act.64 Regarding drop-down menu questions, immunity is not lost from requiring answers to such questions; it is lost when the question posed and/or choice of answers is responsible for the creation or development of the alleged harmful content.65

On the other hand, if the material solicited is illegal, and there is some evidence of bad motive or intent, then immunity may be lost according to and othercases.66 But keep in mind that even here, immunity will not be discarded lightly. The court cautioned it must be “very clear” that the Web site “directly participates in developing the alleged illegality.”67 Immunity is lost only by forcing and/or requiring its users to provide the allegedly discriminatory information as a condition of access.68

Meaning of “Publisher”: Promissory Estoppel — Another area where at least one federal circuit court has limited immunity involves focus on the meaning of “publisher or speaker” in §230(c)(1). Barnes v. Yahoo!, Inc., 565 F.3d 560 (9th Cir. May 7, 2009) (amended opinion 2009 U.S. App. LEXIS 20053 (June 22, 2009)), involved two claims brought against Yahoo by a woman victimized by indecent image postings on a Yahoo online chat room by her ex-boyfriend. After she complained to Yahoo, an official said action would be taken, but ultimately, the company failed to take down the offensive information.

In its opinion, the court focused on the by now familiar §230(c)(1) language that bars claims that treat the Web site as the “publisher” of third-party information. The court said that Yahoo was immunized against the victim’s first claim for “negligent undertaking,” because like other courts deciding this question, the act that Yahoo failed to undertake — removal of the indecent material — was actually part of the publisher’s duties and is, thus, protected from liability by §230(c)(1). The court then zeroed in on the promissory estoppel claim. This is where a plaintiff sues for detrimentally relying upon defendant’s promise to be legally bound — in this case, Yahoo’s promise to take down the indecent pictures. The court said liability for this sort of claim is not premised on anything related to Yahoo’s status as a “publisher” or to actually editing or publicizing anything, but rather to the company’s proclaimed intention to be legally obligated to something. As a result, the court said the §230(c)(1) protection applicable to “publishers” does not apply.69

This case means that if a Web site specifically promises a third party it will take down objectionable material with constructive intent its promise is to be enforceable, it may open itself up to liability. The court cautioned that “a general monitoring policy, or even an attempt to help a particular person” by the provider is not sufficient to destroy immunity.70 According to the court, it is easy for providers to avoid liability by disclaiming any intention to be bound. However, it is still true that specific promises can end immunity. Web sites that allow posting of personal information should take note of this decision and draft their own policies regarding treatment of third-party complaints accordingly.

Section 230 immunity has, for many years, been viewed by most courts as broadly shielding Web providers against lawsuits for third-party content. Mixed use, however, can be a problematic area. Also, as the Internet continues to grow and online content expands exponentially, some courts appear less willing to offer complete immunity without close scrutiny, in particular in cases that involve allegations of encouragement of illegal or discriminatory content or where the underlying claim can be framed to discount any publication activities. For example, some courts have simply employed a more fluid definition of “creation or development” that has the result of making Web sites liable for content deemed to invite the illegal or offensive conduct, even though such activity can arguably also fall within the orbit of “editorial functions,” which are immune under the CDA. In any event, it seems likely that as more and more content goes digital, the trend to tightly construe the scope of §230 immunity will continue, at least in some jurisdictions, until the U.S. Supreme Court or Congress decides to step in.


1 The terms Web or Web site publisher, content provider, service provider, provider of digital information, Web site provider, Web site platform, Web operator, etc., are used interchangeably in this article to refer to those “interactive computer services” that are potentially immune under §230. This is consistent with the act’s expansive definition of “interactive computer service” to include “any information service, system, or access software provider that provides…computer access by multiple users to a computer server.” 47 U.S.C. §230(f)(2).

2 While some courts refer to the CDA as providing immunity, other courts have characterized the CDA’s protection as a defense to liability. This article opts for the use of immunity to describe §230.

3 47 U.S.C.A. §230(b)(1),(4); see Eric Weslander, Comment: Murky “Development”: How the Ninth Circuit Exposed Ambiguity Within the Communications Decency Act, and Why Internet Publishers Should Worry [Fair Housing Council of San Fernando Valley v., LLC, 521 F.3d 1157 (9th Cir. 2008)], 48 Washburn L. J. 267, 274-277 (2008). A second rationale was to remove disincentive for the development and use of screening technologies of objectionable material.

4 The state court is authorized to do so because federal case law is generally not binding on state courts, leaving the state court to decide based on how it thinks the U.S. Supreme Court would ultimately rule. See, e.g., Corporate Securities Group v. Lind, 753 So. 2d 151, 152 (Fla. 4th D.C.A. 2000).

5 47 U.S.C. §230(c)(1).

6 Id. at §230(f)(3).

7 See Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997); Carafano v., Inc., 339 F.3d 1119, 1123-34 (9th Cir. 2003).

8 Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003) (quoting Zeran,129 F.3d at 330). In enacting §230, Congress decided to treat providers of third-party content on the Internet much differently than traditional media like newspapers, magazines, television, and radio. That is, while these traditional media forms are liable for the defamatory material carried by them but created by others, Internet service providers that disseminate such third-party information are protected by the broad §230 safe harbor provision. Zeran, 129 F.3d at 332.

9 See Alvi Armani Med., Inc. v. Hennessey, 629 F. Supp. 2d 1302, 1306-07 (S.D. Fla. 2008).

10 Fair Housing Council of San Fernando Valley v., 521 F.3d 1157, 1162-63 (9th Cir. 2008).

11 Courts have said that all doubts “must be resolved in favor of immunity,” and that §230’s “broad immunity” extends to “all claims stemming from [an interactive service provider’s] publication of information created by third parties.” Goddard v. Google, Inc. [Goddard I], No. C 08-2738 JF, 2008 U.S. Dist. LEXIS 101890 at *6 (N.D. Cal. Dec. 17, 2008), quoting, 521 F.3d at1174; Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

12 See Batzel v. Smith, 333 F.3d 1018, 1030 (9th Cir. 2003).

13 See Zeran, 129 F.3d at 331.

14 Ben Ezra, Weinstein, & Co, Inc. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000).

15 Blumenthal v. Drudge, 992 F. Supp. 44, 52 (D.D.C. 1998).

16 See Carafano, 339 F.3d at 1123; Gentry v. eBay, Inc., 99 Cal. App. 4th 816 at 833, fn 11 (“The critical issue is whether eBay acted as an information content provider with respect to the information that [plaintiff] claim[s]is false or misleading”).

17 Doe v. America Online, Inc., 783 So. 2d at 1019 (Dis. opinion of Lewis).

18 See Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 702-704 (S.D.N.Y. 2009); see dicta in Almeida v., Inc., 456 F.3d 1316, 1321-22 (11th Cir. 2006). Also, despite the Web site shield, the complaining party still has recourse against the third-party user that generates the content. See Zeran, 129 F.3d at 330-331.

19 See Matthew Minora, Comment: Rumor Has It that Non-Celebrity Gossip Web-Site Operators are Overestimating Their Immunity Under the Communications Decency Act, 17 CommLaw Conspectus 821 (2009).

20 Universal Comm’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419-420 (1st Cir. 2007); Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d, 242 Fed. Appx. 833 (3d Cir. 2007), cert. den., 552 U.S. 1156 (2008).

21 Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 295 (D.N.H. 2008).

22 Id.

23 See Schneider v., Inc., 108 Wn. App. 454, 31 P.3d 37, 43 (Wash. Ct. App. 2001).

24, 521 F.3d at1170.

25 Zeran, 129 F.3d at 330-331.

26 Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 651 (E.D. Tex., 2006).

27 Barnes v. Yahoo!, Inc., 565 F.3d 560, 567 (9th Cir. May 7, 2009) (amended opinion 2009 U.S. App. LEXIS 20053 (June 22, 2009)).

28 Batzel, 333 F.3d at 1032.

29 Doe v. MySpace, Inc., 528 F.3d 413, 419-20 (5th Cir. 2008), cert. den., 77 U.S.L.W. 3295 (2008); Barnes v. Yahoo!, Inc., No. Civ. 05-926-AA, 2005 U.S. Dist. LEXIS 28061 at * 4, 10-11 (D. Ore. Nov. 8, 2005), aff’d in part, rev’d in part, 565 F.3d 560 (9th Cir. 2009).

30 In discussing a provider’s liabilities and duties regarding screening activities, it is noted that another provision of the CDA requires providers, at the time of entering an agreement with a customer, to notify customers that parental control protections like software screening services are commercially available and that the protections may assist in limiting access to material that is harmful to minors. 47 U.S.C. §230(d) (2000).

31 Goddard I, 2008 U.S. Dist. LEXIS 101890 at *18-20; Green v. Am. Online, 318 F.3d at 471-472.

32 Doe II v. MySpace, Inc., 175 Cal. App. 4th 561, 571; 2009 Cal. App. LEXIS 1073 (Cal. App. 2d Dist. 2009), citing Barrett v. Rosenthal 40 Cal. 4th 33 (2006); 2006 Cal. LEXIS 13529 (2006).

33 Mazur v. eBay, Inc., No. C 07-03967 MHP, 2008 U.S. Dist. LEXIS 16561 at *37-38 (N.D. Cal. Mar. 3, 2008).

34 Id. at *37-38.

35 See Goddard I, 2008 U.S. Dist. LEXIS 101890 at *21-22.

36 Id. at *22-24; Nat’l Numismatic Certification, LLC. v. eBay, Inc., No. 6:08-cv-42-Orl-19GJK, 2008 U.S. Dist. LEXIS 109793 at *78-83 (M.D. Fla. July 8, 2008); see also Barnes v. Yahoo!, 565 F.3d at 569-570.

37 See, 521 F.3d at 1169 ns. 24, 37; Dart v. Craigslist, Inc., No. 09 C 1385, 2009 U.S. Dist. LEXIS 97596 at *25-26 (N.D. Ill. Oct. 20, 2009).

38 Goddard v. Google, Inc. [Goddard II], 640 F. Supp. 2d 1193, 1197-98 (N.D. Cal. July 30, 2009), quoting, 521 F.3d at 1172.

39 See at 1174.

40 Id.

41 Blumenthal, 992 F. Supp. 44 at 51-52.

42 Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 822, 828-31; 2002 Cal. App. LEXIS 4329 (Cal. App. 4th Dist. 2002).

43 Zeran, 129 F.3d at 333; Universal Comm’n Sys., Inc. v. Lycos, 478 F.3d at 420.

44 Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 932 (D. Ariz. 2008).

45 See David L. Hudson, Jr., Taming the Gossipmongers: Websites that Dish Dirt May Soon Get Their Publishers’ Hands Muddy, ABA J. (July 2008).

46 See Melissa A. Troiano, Comment: The New Journalism? Why Traditional Defamation Laws Should Apply to Internet Blogs, 55 Am. U. L. Rev. 1447 (June 2006).

47, 521 F.3dat 1164.

48 Chi. Lawyers’ Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F. 3d 666, 669 (7th Cir. 2008); see also Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003) (noting in dicta that to read CDA as immunizing providers who make no effort and incur no expense to monitor content they make available to public is inconsistent with the CDA’s purpose to encourage “good samaritan” blocking and screening of offensive material).

49 This is not an exclusive list. For example, another circumstance in which immunity can be challenged is when the content producer had no role in “providing” the material to a “provider or user of an interactive computer service.” For example, if for some reason a Web site publisher receives information, e-mail, or tips that he or she does not believe was tendered for posting online (e.g., receipt of a “private e-mail” or “snail mail” letter), then the publisher is the one making the affirmative decision to publish and contributes to the unlawful dissemination and is a developer not entitled to CDA immunity. See Batzel, 333 F.3d at 1032-33;, 521 F.3d at 1171. To avoid chilling of the posting of information online that results from confusion over who “provided” the information, the focus in determining provider status is not on the murky information producer’s intentions or knowledge when transmitting content but, instead, on the service provider’s reasonable perception of those intentions. Batzel, 333 F.3d at 1034.

50 MCW, Inc. v., LLC, 2004 U.S. Dist. LEXIS 6678, No. 3:02-CV-2727-G at *26 (N.D. Tex. April 19, 2004).

51, 521 F.3d at 1169.

52 Anthony v. Yahoo!, Inc., 421 F. Supp. 2d 1262-63 (N.D. Cal. 2006).

53 MCW, Inc., No. 3:02-CV-2727-G at *33; see also Hy Cite Corp. v., L.L.C., 418 F. Supp. 2d 1142, 1149 (D. Ariz. 2005); compare GW Equity LLC v. Xcentric Ventures LLC, 2009 U.S. Dist. LEXIS 1445, No. 3:07-CV-976-O at *21-22 (N.D. Tex. Jan. 9, 2009) (where the court held that adding geographical information to titles is “insufficient participation” by defendants to lose immunity and that the geographical information plaintiff allegedly developed is not part of the allegedly libelous information at issue, which is required in order to lose CDA immunity).

54 Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 2008 U.S. Dist. LEXIS 11632, No. 2:04-cv-47-FtM-34SPC at *35-36 (M.D. Fla. Feb. 15, 2008) (more specifically, where the consumer Web site provided disparaging categories (e.g., “con artists,” “corrupt companies”) that posters had to select, the court held the companies did not lose immunity because merely “provid[ing] categories from which a poster must make a selection in order to submit a report on the ROR Web site is not sufficient to treat [d]efendants as information content providers of the reports”).

55 For example, in one case a defendant (sued for sending harassing e-mails to a co-worker) claimed immunity because he said he was merely a blogger forwarding articles and content to those on his listserv. The court disagreed. attaching his own commentary, the court concluded the defendant ceased to be a passive host of third-party information and lost any claim to §230 protection. Doe v. City of New York, 583 F. Supp. 2d 444, 449 (S.D.N.Y. 2008).

56 Best Western Int’l, Inc. v. Furber, 2008 U.S. Dist. LEXIS 70552, No. CV-06-1537-PHX-DGC at *32-33 (D.C. Ariz. Sept. 5, 2008); see also, 521 F.3d at 1167 (defendant is responsible at least in part because profile page is a “collaborative effort”).

57 See MCW, Inc., No. 3:02-CV-2727-G at *34-35.

58, 521 F.3d at 1164-73.

59 Id. at 1167-68; Daniel J. Solove, The Future of Reputation: Gossip, Rumor and Privacy on the Internet(Yale Univ. Press 2007).

60, 521 F.3d at 1168, 1173-1174.

61 Id at 1168-69.

62 FTC v. Accusearch, Inc., 570 F.3d at 1199.

63 Carafano, 339 F.3d at 1124;, 521 F.3d at 1169, 1172, 1174-75(when the Web site merely “enhances by implication” or “develops by reference,” the Web provider should be protected from liability).

64 Chic. Lawyers’ Comm. for Civil Rights Under Law, Inc., 519 F.3d at 671-672.

65 See GW Equity LLC v. Xcentric Ventures LLC, 2009 U.S. Dist. LEXIS at *16.

66 See NPS, LLC v. StubHub, Inc., 2009 Mass. Super. LEXIS 97, No. 06-4874-BLS1 at *37 (January 22, 2009) (Web
site ticket reseller sued by professional sports franchise for tortious inference was not entitled to §230 immunity due to its development of content by materially contributing to illegal ticket scalping of its sellers); see also Chic. Lawyers’ Comm. for Civ. Rights Under Law, Inc., 519 F. 3d at 670, citing MGM, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (information content provider may be liable for contributory infringement if their system is designed to help people steal music or other material in copyright).

67, 521 F.3d at 1174.

68 Id. at 1167; see Doe v. MySpace, Inc., 629 F. Supp. 2d 663, 665 (E.D. Tex. 2009).

69 Barnes, 565 F.3d at 571-72.

70 Id. at 572.

Samuel J. Morley is general counsel at the Florida Press Association, a trade association representing Florida’s daily and weekly newspapers. He received his J.D. from Wake Forest University. He is a former associate and partner at the law firm of Holland & Knight and immediate past chair of The Florida Bar Media and Communications Law Committee. The author appreciates and acknowledges the editorial assistance of John N. Gathegi, Ph.D., J.D., visiting professor, School of Mass Communications, University of South Florida, and James J. McGuire, partner at the law firm of Thomas, LoCicero, and Bralow in Tampa.