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<i>Zeran v. AOL</i> and Its Inconsistent Legacy
In January 1996, shortly after it was enacted, I wrote one of the first articles on the Good Samaritan exemption created by the Telecommunications Act of 1996 (47 U.S.C. §230(c) — popularly referred to as the Communications Decency Act (CDA)), correctly arguing that it preempted claims against interactive computer service providers and users, not merely for defamation, but for a broad array of claims. I did not, however, envision that subsection 230(c)(1) would be construed as broadly as it has been over the past two decades, or that subsection 230(c)(2) would be applied as infrequently. Indeed, when the district court and then the circuit court decided Zeran v. AOL, 129 F.3d 327 (1997), I was critical of their analytic approach, as some may remember from early articles in The Cyberspace Lawyer.
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).
There are, however, differing approaches to how the U.S. Court of Appeals for the Fourth Circuit's ruling in Zeran v. AOL is applied in different circuits.
Most circuits construe the CDA broadly, consistent with Zeran. See, e.g., Doe No. 1 v. Backpage.com, 817 F.3d 12, 18-24 (1st Cir. 2016) (affirming dismissal of claims for civil remedies under the Trafficking Victims Protection Reauthorization Act, 18 U.S.C.A. §1595, and Massachusetts Anti-Human Trafficking and Victim Protection Act of 2010, Mass. Gen. Laws ch. 265, §50); Obado v. Magedson, 612 F. App'x 90, 91-94 (3d Cir. 2015) (affirming dismissal for failure to state claims for defamation, intentional and negligent infliction of emotional distress and invasion of privacy against various service providers, search engines and domain name registrars for republishing and allegedly manipulating search engine results to maximize the impact of allegedly defamatory content, based on the CDA); Doe v. MySpace, 528 F.3d 413, 420 (5th Cir. 2008) (rejecting the assertion that MySpace could be held liable for failing to implement measures that allegedly would have prevented a minor from being contacted by a predator, and stating that these “allegations are merely another way of claiming that MySpace was liable for publishing the communications and they speak to MySpace's role as a publisher of online third-party-generated content.”); Jones v. Dirty World Entertainment Recordings, 755 F.3d 398 (6th Cir. 2014) (vacating and reversing a jury award for the plaintiff over highly offensive comments posted on a gossip website); Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, 519 F.3d 666, 668–69 (7th Cir. 2008) (affirming dismissal of a Fair Housing Act claim).
On the other hand, the Ninth Circuit's decision in Fair Housing Council v. Roommate.com, 521 F.3d 1157 (9th Cir. 2008) (en banc), broadly construed what constitutes development, which could strip away CDA protection for an interactive content provider by treating it as an information content provider for user content in narrow circumstances where the site is deemed to have developed the user content. While this interpretation ultimately is narrow, clever plaintiffs in the Ninth Circuit try to plead around the CDA by alleging development in the hope of moving a claim past motion practice to discovery.
The Ninth Circuit also has recognized a number of fact-specific, narrow exceptions to the CDA that have not been recognized by other circuits. See, Doe No. 14 v. Internet Brands, 824 F.3d 846 (9th Cir. 2016) (holding that a service could be sued for failing to warn of a dangerous user of its site, but only to the extent the provider's knowledge was acquired offline); Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir. 2009) (holding that a provider could be sued for promissory estoppel if it voluntarily undertook to do something that the CDA otherwise would not require, such as removing user content); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (carving out a narrow exception when a communication republished by a defendant was not originally intended for publication).
Courts also have taken differing approaches to the question of what constitutes a claim pertaining to intellectual property, within the meaning of section 230(e)(2), which creates an exclusion to the otherwise broad preemption provisons set forth in sections 230(c)(1) and 230(c)(2). Compare, Perfect 10 v. CCBill, 488 F.3d 1102 (9th Cir. 2007) (holding that the CDA preempted a state right of publicity claim) withDoe v. Friendfinder Network, 540 F. Supp. 2d 288, 298-304 (D.N.H. 2008) (disagreeing with Perfect 10 and holding that the CDA did not preempt plaintiff's right of publicity claim); andAtlantic Recording v. Project Playlist, 603 F. Supp. 2d 690, 702-04 (S.D.N.Y. 2009) (construing the literal language of the statute the same way as the court in Doe and declining to dismiss plaintiff's common law copyright claim).
Depending where a party is sued, these differences can impact whether CDA immunity is determined early, and relatively inexpensively. The Fourth Circuit, which decided Zeran, observed 12 years later that CDA “'immunity is an immunity from suit rather than a mere defense to liability' and 'it is effectively lost if a case is erroneously permitted to go to trial' ….” Nemet Chevrolet v. Consumeraffairs.com, 591 F.3d 250, 254-55 (4th Cir. 2009) (citations omitted). Exceptions to and variations in the way the CDA is construed in different circuits, even if narrow, ultimately impact whether the immunity afforded by the CDA can be quickly vindicated or whether, in a given case, it may be lost — or at least diluted — through protracted litigation.
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Ian C. Ballon is an Internet litigator and co-chair of Greenberg Traurig's Global Intellectual Property & Technology Practice Group. He also serves as Executive Director of Stanford Law School's Center for e-Commerce and is the author of the five-volume legal treatise, E-Commerce & Internet Law: Treatise with Forms 2d Edition (Thomson Reuters West, www.ianballon.net). The opinions expressed in this article are solely those of the author.
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