The following are key cases that litigated CDA 230, separated by jurisdiction.

 

First Circuit

Universal Communications Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007)

Type of online publisher: Lycos, online message board

Publisher’s role in third party content: Operated online message board that required user registration and cross-linked with other Lycos sites

CDA § 230 applicable? Yes.

When a third party posted defamatory statements about Universal Communications Systems on an online Lycos message board, the company sued Lycos arguing in part that Lycos’s registration process and link structure had prompted the statements and extended a type of “culpable assistance” to the author. The court rejected these claims because registration and linking of bulletin boards are ““standard elements of web sites ‘with [both] lawful and unlawful potential’… and hence, without more, cannot form the basis to find inducement.”

 

Third Circuit

Green v. America Online, 318 F.3d 465 (3d. Cir. 2003)

Type of online publisher: America Online (AOL), online chat room

Publisher’s role in third party content: Transmitted messages between third parties

CDA § 230 applicable? Yes.

In the Third Circuit’s first CDA § 230 case, the plaintiff sued AOL after two other AOL users sent him defamatory messages and a virus-like “punter” program through an AOL chat room. But the court ruled that the program fell within the definition of “information” provided by a third party under CDA § 230, and that AOL had not waived its § 230 immunity through its Membership Agreement (which stipulated that AOL did not assume responsibility for third-party content).

The court also rejected the plaintiff’s claims that CDA § 230 violated the First Amendment and exceeded Congress’s power under the Commerce Clause.

Key Quotes:

Green thus attempts to hold AOL liable for “decisions relating to the monitoring, screening, and deletion of content from its network - actions quintessentially related to a publisher's role.” Section 230 “specifically proscribes liability” in such circumstances (citing Zeran at 332-333).

 

Parker v. Google, Inc., 422 F. Supp. 2d 492, decision summary aff’d, 242 Fed. Appx. 833 (3d Cir. 2007), cert denied 522 U.S. 1156 (2008)

Type of online publisher: Google, search engine

Publisher’s role in third party content: Archived; cached; made content available via search

CDA § 230 applicable? Yes.

An author sued Google for defamation, invasion of privacy and negligence because Google archived defamatory messages posted about him on a third-party website and displayed “an authorized biography of Plaintiff” when his name was entered as a Google search query. The court rejected the claims: “It is clear that § 230 was intended to provide immunity for service providers like Google on exactly the claims Plaintiff raises here.”

 

Fourth Circuit

Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)

Type of online publisher: America Online (AOL), bulletin board

Publisher’s role in third party content: Hosted online bulletin board

CDA § 230 applicable? Yes.

Zeran was one of the first cases to interpret CDA 230. The decision held that AOL was not liable for a false advertisement placed on an AOL bulletin board, which directed users to call plaintiff and which resulted in him facing significant harassment.

Key Quotes:

Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech.

Because service providers would be subject to liability only for the publication of information, and not for its removal, they would have a natural incentive simply to remove messages upon notification, whether the contents were defamatory or not. Thus, like strict liability, liability upon notice has a chilling effect on the freedom of Internet speech.

Congress made a policy choice ... not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages ... The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.

 

Fifth Circuit

Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008), cert denied, 129 S. Ct. 600 (2008)

Type of online publisher: MySpace, social network

Publisher’s role in third party content: Hosted only (no other role alleged)

CDA § 230 applicable? Yes.

A court held that CDA § 230 barred a negligence claim against MySpace for failing to implement safety measures that would prevent minors from lying about their age and creating “public” profiles that enabled them to communicate with sexual predators online. The victim was a 13-year old daughter who created a public MySpace profile by claiming to be 18; she then exchanged personal information with a 19-year old who ultimately assaulted her. Her parent sued MySpace for fraud and negligence. But the court held 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.”

Key Quotes:

Courts have construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content.

 

Sixth Circuit

Doe v. SexSearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007), judgment summarily aff’d, 551 F.3d 412 (6th Cir. 2008)

Type of online publisher: SexSearch.com, adult dating site

Publisher’s role in third party content: Reserved the “right to modify the content of profiles when they do not meet the profile guidelines”

CDA § 230 applicable? Yes.

The plaintiff in this case was charged criminally after he had consensual sex with a minor he met through SexSearch.com, though her profile stated she was 18 and he believed the website "warranted 'all persons within this site are 18+.'" He sued the website, attempting to circumvent CDA § 230 by objecting not to the content the minor posted but simply to her presence on the website. The court found that though these claims were "artfully pled," they boiled down to an argument that SexSearch.com was liable for inadequate monitoring, screening and deletion of content. As such, the allegations were barred by § 230.

The court also rejected the plaintiff’s argument that CDA applies only to defamation cases, citing courts’ wide “consensus that its grant of immunity is broad and far reaching.”

Key Quotes:

At the end of the day, however, Plaintiff is seeking to hold SexSearch liable for its publication of third-party content and harms flowing from the dissemination of that content. The underlying basis for Plaintiff's claim is that if SexSearch had never published Jane Roe's profile, Plaintiff and Jane Roe never would have met, and the sexual encounter never would have taken place.  Plaintiff thus attempts to hold SexSearch liable for "decisions relating to the monitoring, screening, and deletion of content from its network-actions quintessentially related to a publisher's role." Section 230 specifically proscribes liability in such circumstances. (citations omitted)

 

Seventh Circuit

Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008)

Type of online publisher: Craigslist, online classified advertising site

Publisher's role in third party content: Hosted only

CDA § 230 applicable? Yes.

Unlike Roommates.com, Craigslist was immune from liability for users’ discriminatory housing postings because “[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination.”  The court rejected the claims that Craigslist caused the discriminatory posting just by hosting an interactive web forum. It also rejected the argument that discriminatory housing advertisements were an exception to CDA § 230.

 

Doe v. GTE Corp, 347 F.3d 655 (7th Cir. 2009)

Type of online publisher: GTE Corp., Internet service provider (ISP)

Publisher’s role in third party content: Hosted only

CDA § 230 applicable? Yes.

Analogizing an ISP to Federal Express or the Postal Service, which may transport packages with unlawful contents and still not incur liability, Judge Easterbrook rejected the plaintiffs’ claim that hosting a website site engaged in unlawful activity made an ISP liable for negligence.

Key Quotes:

Just as the telephone company is not liable as an aider and abettor for tapes or narcotics sold by phone, and the Postal Service is not liable for tapes sold (and delivered) by mail, so a web host cannot be classified as an aider and abettor of criminal activities conducted through access to the Internet.

 

Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009)

Type of online publisher: Craigslist, online classified advertising site

Publisher's role in third party content: Created “adult” section; allowed search by sexual preference.

CDA § 230 applicable? Yes.

The Sheriff of Cook County sued Craigslist arguing that the site’s "adult" or "erotic" services section facilitated prostitution and created a public nuisance. The sheriff argued that "Craigslist plays a more active role than an intermediary or a traditional publisher... [because it] causes or induces its users to post unlawful ads-by having an 'adult services' category" and enables users to search by sexual preference. But the court held that Craigslist did not cause or induce illegal conduct: erotic services could include lawful speech protected by the First Amendment and the section featured warnings not to post prostitution-related ads. CDA § 230 therefore barred the sheriff's claims.

 

Eighth Circuit

M.A. v. Village Voice Media, 809 F.Supp.2d 1041 (E.D. Miss. 2011)

Type of online publisher: Backpage.com, online classified advertising site

Publisher’s role in third party content: Makes ads searchable via keyword; created highly viewed website; offered special ad placement for a fee. 

CDA § 230 applicable? Yes.

A minor who was trafficked in part via advertisements posted on Backpage.com sued Village Voice, the owner of Backpage, alleging that the company aided and abetted her trafficking. The court rejected the claim. First, the court held Backpage retained its immunity as a content provider under § 230 despite allegations that it had general notice of illegal advertisements on the site and profited from such ads. Second, Village Voice was not guilty of aiding and abetting, which requires acting with specific intent to aid in the commission of a crime. Since the plaintiff did not allege that Backpage acted with specific intent to aid in the victim’s trafficking, the court rejected the aiding and abetting allegation.

Key Quotes:

[T]o find Backpage to be not immune from suit based on M.A.'s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to § 230’s broad grant of immunity. This the Court may not do.

[O]ther cases [have applied] the broad reach of § 230's immunity to websites that, whatever they did to increase their profitability and visibility, did not create the content of the offensive posted information.

 

Ninth Circuit

Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir. 2003)

Type of online publisher: Distributor of newsletter sent over list serve

Publisher’s role in third party content: Minor edits to text

CDA § 230 applicable? Yes, unless third party did not intend his content for publication

Batzel helped cement a growing consensus among courts that CDA § 230 granted Internet publishers broad protection for publishing third party content. The decision recognized that in order to facilitate online speech, “Congress… has chosen to treat cyberspace differently” from traditional publishers.

In Batzel, the distributor of an electronic newsletter was a publisher for the purposes of CDA § 230 when he forwarded a third party’s email to the newsletter list serve with only minor edits. For the court, the only question was whether the author intended his email to be forwarded. The appellate court remanded the case to determine if the author did in fact "provide" his email for further distribution, within the meaning of § 230.

Key Quotes:

As a matter of policy, "Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing obscene or defamatory material written or prepared by others." (citing Blumenthal v. Drudge, 992 F.Supp. 44, 49 (D.D.C. 1998)).

A distinction between removing an item once it has appeared on the Internet and screening before publication cannot fly either. For one thing, there is no basis for believing that Congress intended a one-bite-at-the-apple form of immunity. Also, Congress could not have meant to favor removal of offending material over more advanced software that screens out the material before it ever appears.

We therefore hold that a service provider or user is immune from liability under § 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other "interactive computer service."

 

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003)

Type of online publisher: Metrosplash.com, dating website

Publisher’s role in third party content: Standardized questions on profile

CDA § 230 applicable? Yes.

The court ruled that providing a questionnaire for users to fill out did not make a dating website an information content provider because none of the objectionable content posted by the third-party “bore more than a tenuous relationship to the actual questions asked.”

The court concluded that calling a website a content creator for posting standardized questions would run counter to Congressional intent in enacting CDA § 230, since creating easily encoded questions arguably “promotes the expressed Congressional policy ‘to promote the continued development of the Internet and other interactive computer services.’”

Key Quotes:

[R]eviewing courts have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of “interactive computer service” and a relatively restrictive definition of “information content provider.”

Under § 230 ... so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.

Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party. As a result, Internet publishers are treated differently from corresponding publishers in print, television and radio.

 

Anthony v. Yahoo! Inc., 421 F.Supp.2d 1257 (N.D.Cal. 2006)

Type of online publisher: Yahoo! Personals and Yahoo! Premier, dating sites

Publisher’s role in third party content: Generated false profiles and emailed current users profiles of people who were no longer subscribers.

CDA § 230 applicable? No.

A user of Yahoo’s online dating services sued the company for fraud and negligent misrepresentation after he discovered the company generated false profiles and sent users now-defunct profiles in order to entice them to re-subscribe. The court said CDA § 230 does not apply to content that an interactive service provider "developed or created entirely by itself." The CDA also did not absolve Yahoo! of liability for sending users now-defunct profiles, because the resulting misrepresentation and fraud claims arose from Yahoo's "manner of presenting the profiles—not the underlying profiles themselves."

 

Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007)

Type of online publisher: CCBill, Web host site and e-commerce site

Publisher's role in third party content: Hosted only

CDA § 230 applicable? Yes.

The plaintiff in this case sued two web service providers for hosting third-party sites that displayed images stolen from the plaintiff. The plaintiff, a subscription website that generated its own content, claimed that CDA § 230 should not protect the defendants because the images fell within the state-law definition of intellectual property. Although the court agreed the CDA does not provide “immunity from ‘law[s] pertaining to intellectual property,’” it held that intellectual property must be defined according to federal law. Permitting state IP law to dictate the scope of protection under the CDA “would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes.”

 

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)

Type of online publisher: Roommates.com, roommate match site

Publisher’s role in third party content: Required users to answer questions with pre-populated answers

CDA § 230 applicable? No.

In an en banc decision, the Ninth Circuit held that Roommates.com could not claim immunity under CDA § 230 where as a condition of use, it required users to choose among set answers to questions that violated anti-discrimination laws. These questions asked for users’ religious and ethnic preferences in a roommate, in violation of the Fair Housing Act. The court found that by requiring these answers, the website was affirmatively “inducing third parties to express illegal preferences,” making the site akin to a “co-developer” of the content. By contrast, a website could preserve its immunity if it offered users “neutral tools”—such as a general comment field where users could enter criteria or preferences in a roommate.

Key Quotes:

[P]roviding neutral tools to carry out what may be unlawful or illicit searches does not amount to ‘development’ for purposes of the immunity exception.”

Providing neutral tools for navigating websites is fully protected by CDA immunity, absent substantial affirmative conduct on the part of the website creator promoting the use of such tools for unlawful purposes.

The salient fact in Carafano was that the website's classifications of user characteristics did absolutely nothing to enhance the defamatory sting of the message, to encourage defamation or to make defamation easier: The site provided neutral tools specifically designed to match romantic partners depending on their voluntary inputs. By sharp contrast, Roommate's website is designed to force subscribers to divulge protected characteristics and discriminatory preferences

By requiring subscribers to provide the [unlawful preference] information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.

[O]rdinary search engines do not use unlawful criteria to limit the scope of searches conducted on them, nor are they designed to achieve illegal ends-as Roommate's search function is alleged to do here.

 

Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir. 2009)

Type of online publisher: Yahoo!, public user profiles

Publisher’s role in third party content: Hosting, failing to remove

CDA § 230 applicable? Yes (to tort claim); no (to promissory estoppel claim based on company employee’s promise to remove offensive content).

When Yahoo! failed to take down a false profile of the plaintiff even after a company employee assured her that it would be removed, the plaintiff sued the company claiming that it had acted negligently by not undertaking a promised action (removing the profile). The court held that because the action in question was publishing or removing third-party content, CDA § 230 applied. But the court permitted the plaintiff to recast her tort claim in terms of promissory estoppel. Because a Yahoo! employee told the plaintiff the profile would be removed, she could potentially hold the company liable “as the counter-party to a contract” created by that promise. CDA § 230 would not bar a promissory estoppel claim because “liability here would come not from Yahoo's publishing conduct,” but from the company’s legally binding promise to do something, “which happens to be removal of material from publication.

Key Quotes:

Contract liability here would come not from Yahoo's publishing conduct, but from Yahoo's manifest intention to be legally obligated to do something, which happens to be removal of material from publication. Contract law treats the outwardly manifested intention to create an expectation on the part of another as a legally significant event. That event generates a legal duty distinct from the conduct at hand, be it the conduct of a publisher, of a doctor, or of an overzealous uncle.

 

Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009)

Type of online publisher: Google, online advertisement tool

Publisher's role in third party content: Keyword tool suggests words for advertisers to include in ads.

CDA § 230 applicable? Yes.

The plaintiffs accused Google of furthering unlawful activity because its Keyword Tool suggested to advertisers of mobile content that they include the word “free” in advertisements including the word “ringtone.” The court held that CDA § 230 barred the claim, because the Keyword Tool was a neutral tool that “does nothing more than provide options that advertisers may adopt or reject at their discretion.”

 

Tenth Circuit

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

Type of online publisher: America Online (AOL) quotes & portfolios page

Publisher’s role in third party content: Edited and corresponded with third party providers of stock quotation information to correct errors

CDA § 230 applicable? Yes.

AOL did not become a content-creator simply by editing stock quotations or corresponding with the third-party provider to correct errors. Because third-party companies “alone created the stock information at issue,” AOL could not be held liable for defamation when it displayed the stock quotes on its site.