Revenge Porn and the Uphill Battle to Pierce Section 230 Immunity (Part II)

Plaintiffs’ lawyers have some reason to think that they can convince courts to change their broad-sweeping view of Section 230.  In the rare case, courts have pierced the safe harbor, though not because the site operators failed to engage in good faith attempts to protect against offensive or indecent material.  In 2011, a federal district court permitted a woman to sue the site operator of the Dirty.com for defamation on the grounds that Section 230 is forfeited if the site owner “invites the posting of illegal materials or makes actionable postings itself.”  Sarah Jones v. Dirty World Entertainment Recordings LLC, 766 F. Supp.2d 828, 836 (E.D. Kentucky 2011).

That trial judge relied on a Ninth Circuit decision, Fair Housing Council v. Roommates.com, which involved a classified ad service that helps people find suitable roommates.  To sign up for the site’s service, subscribers had to fill out an online questionnaire that asked questions about their gender, race, and sexual orientation.  One question asked subscribers to choose a roommate preference, such as “Straight or gay males,” only “Gay” males, or “No males.”  Fair housing advocates sued the site, arguing that its questionnaires violated federal and state discrimination laws.  The Ninth Circuit found that Section 230 failed to immunize the defendant site from liability because it created the questions and choice of answers and thus became the “information content provider.”  The court ruled that since the site required users to answer its questions from a list of possible responses of its choosing, the site was “the developer, at least in part, of that information.”  Each user’s profile page was partially the defendant’s responsibility because every profile is a “collaborative effort between [the site] and the subscriber.”

As the Ninth Circuit held (and as a few courts have followed), Section 230 does not grant immunity for helping third parties develop unlawful conduct. The court differentiated the defendant’s site from search engines whose processes might be seen as contributing to the development of content, its search results.  According to the court, ordinary search engines “do not use unlawful criteria to limit the scope of searches conducted on them” and thus do not play a part in the development of unlawful searches.  The court endorsed the view that sites designed to facilitate illegal activity fell outside Section 230’s safe harbor provision.

Here is the rub.  To reach its conclusion, the Ninth Circuit essentially had to rewrite the statute, which defines information content providers as those responsible for the “creation and development of information provided through the Internet,” not the creation and development of illegal information.

The Ninth Circuit could have read Section 230’s immunity to apply only, as its title suggests, to providers engaged in good faith attempts to protect against indecent, offensive, or illegal activity.  The court was not prepared to go that far because such a finding would exclude from the safe harbor search engines, ISPs, and other sites that do not monitor their services but nonetheless are not designed to facilitate illegal activity.  I agree with that result.  But rather than twisting the meaning of the statute beyond what it terms support, Congress should instead adopt a narrow amendment to Section 230, excluding from its safe harbor provisions websites designed to facilitate illegal conduct or are principally used to that end.  (In that regard, Go Daddy! would certainly enjoy 230 immunity though revenge porn site operator Texxxan.com would not).  More on that soon, in my book and a piece I’m writing with a Yale ISP Affiliate Fellow colleague.

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2 Responses

  1. Ken Rhodes says:

    I’m wondering about a back-door approach to squelching the site operator–

    The operator has a business model that relates his profit to posting pictures of people. Doesn’t he need model releases from those people? (Assuming that they’re not public figures.)

  2. Danielle Citron says:

    Ken, due to Section 230 immunity, legal claims based on the posting of these pictures sent in by users cannot be brought against site operators. Are you referring to contractual liability. If you are referring to copyright which is covered by DMCA provisions and not Section 230, my understanding is that the person taking the picture owns the copyright, not the subject of the picture. That might make it difficult for the individuals photographed to claim copyright and file a notice and take down. The group Without My Consent are the experts on this.