<i>Zeran v. AOL</i> and Its Inconsistent Legacy

The law, however, is written by courts, not commentators, and the rule of Zeran has been uniformly applied by every federal circuit court to consider it and by numerous state courts. And it has never been rejected in any precedential opinion. Indeed, it is perhaps a fitting tribute to the viability of Zeran that 20 year later the U.S. Court of Appeals for the Ninth Circuit, in its 12th opinion construing the CDA, barely spent even a sentence affirming dismissal of a defamation claim brought against Facebook over user content, pursuant to the CDA and the rule first developed in Zeran. See, Caraccioli v. Facebook, _ F. App'x _, 2017 WL 2445063 (9th Cir. 2017).

The broad preclusive effect of the CDA recognized by Zeran has been extended beyond mere defamation cases to an array of disputes where third parties seek to hold Internet sites or mobile app providers liable for the misconduct of users. Because conduct online takes the form of content — as users act through key strokes, smart phone virtual buttons and emoji — the CDA has been applied where conduct ultimately is premised on user content. Thus, for example, courts have held that the CDA preempts claims by parents against Internet sites and services where children have met adults who then allegedly abused them, by the widows of personnel killed by ISIS, and by victims of sex traffickers against publishers of online classified ads that led to their victimization. It has also been held to preempt claims by a tort victim against the Internet service where the plaintiff's assailant had allegedly purchased the gun used against him, against a social network for failing to promptly remove a profile that allegedly led to violence, for failing to act to prevent statements made in a chatroom, and for strict product liability and related claims brought against eBay for transactions between users of its platform. See, Ian C. Ballon, E-Commerce & Internet Law: Treatise with Forms 2d ed. §37.05[1][C] (enumerating cases).