MEMO TO:
Alexsei Demo US
RESEARCH ID:
#4000539093f0d3
JURISDICTION:
State
STATE/FORUM:
California, United States of America
ANSWERED ON:
December 23, 2021
CLASSIFICATION:
Torts
Information technology

Issue:

Can a social media platform be liable for defamatory content posted to its website by a user of the platform?

Facts:

The plaintiff is a lawyer who is well-respected in the local legal community. A dissatisfied former client posted on a social media site that the lawyer had stolen from him and committed other ethical violations. The lawyer is adamant that these allegations are completely untrue. The lawyer has asked the social media platform to remove the client's posts but it has not. The lawyer is bringing a defamation action in state court against the former client and wants to know if the social media platform should also be added as a defendant.

Conclusion:

Under 47 U.S.C. § 230, providers of interactive computer services are immune from liability in blocking and screening offensive material. Specifically, subsection (c) provides that no provider is to be treated as the publisher or speaker of any information provided by another information content provider.

An "interactive computer service" is any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server. (47 U.S.C. § 230)

Social media platforms have been held to be providers of interactive computer services. (Murphy v. Twitter, Inc.)

47 U.S.C. § 230 precludes courts from treating internet service providers as publishers not just for the purposes of defamation law, with its particular distinction between primary and secondary publishers, but in general. (Barnes v. Yahoo!, Inc.)

47 U.S.C. § 230 provides immunity from liability regardless of whether the defendant would be characterized as a "publisher" or "distributor" under traditional defamation law. This immunity also extends to "active" and "passive" users in addition to internet providers. (Barrett v. Rosenthal)

47 U.S.C. § 230 provides a shield for all publication decisions, including editing, removing, or posting, with respect to content generated entirely by third parties. (Barnes v. Yahoo!, Inc.)

The three requirements for protection from liability under 47 U.S.C. § 230 are: (1) the defendant is a provider or user of an interactive computer service; (2) the plaintiff is seeking to treat the defendant as a publisher or speaker under a state law cause of action; and (3) the information in issue was provided by another information content provider. (Murphy v. Twitter, Inc.)

In the unpublished opinion of Albert v. Yelp, Inc., the California Court of Appeal for the Fourth District held that section 230 immunity extends to defamation claims that rest on the internet provider's delay in removing defamatory messages by a third party.

Law:

Under 47 U.S.C. § 230, providers of interactive computer services are immune from liability in blocking and screening offensive material. Specifically, subsection (c) provides that no provider is to be treated as the publisher or speaker of any information provided by another information content provider:

(c) Protection for "Good Samaritan" blocking and screening of offensive material

(1) Treatment of publisher or speaker

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.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of-

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).1

47 U.S.C. § 230(f)(2) defines "interactive computer service" as any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server:

(2) Interactive computer service

The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

In Barnes v. Yahoo!, Inc., 565 F.3d 560 (9th Cir. 2009), the United States Court of Appeals for the Ninth Circuit applied 47 U.S.C. § 230 to allegations of defamation against Yahoo!, Inc. for content found on its website. The Court found that section 230 precludes courts from treating internet service providers as publishers not just for the purposes of defamation law, with its particular distinction between primary and secondary publishers, but in general (at 568-569):

Pointing to this legal background, Barnes argues that the term "publisher" in section 230(c)(1) refers only to primary publishers and not to secondary publishers or distributors. She argues that because Congress enacted section 230 to overrule Stratton Oakmont, which held an internet service provider liable as a primary publisher, not a distributor, the statute does no more than overrule that decision's application of publisher liability. In Zeran, the Fourth Circuit rejected a similar argument, concluding that so-called distributor liability is merely a subset of publisher

[565 F.3d 569]

liability for purposes of defamation law. 129 F.3d at 332. We have taken note of this issue before, but have not yet had to rule on it for ourselves. See Batzel, 333 F.3d at 1027 n. 10 ("We ... need not decide whether § 230(c)(1) encompasses both publishers and distributors.").

In our view, however, we need not resolve the dispute at all, because it has little to do with the meaning of the statutory language. As noted above, section 230(c)(1) precludes courts from treating internet service providers as publishers not just for the purposes of defamation law, with its particular distinction between primary and secondary publishers, but in general. The statute does not mention defamation, and we decline to read the principles of defamation law into it. In any event, if the reach of section 230(c)(1) were fastened so tightly to the nuances of defamation law, our Roommates.Com, opinion, which dealt with a lawsuit under the Fair Housing Act, would simply have declared that the provision did not apply because there was no claim of defamation. We will not engage in an analysis so contrary to the reasoning, and even some of the holding, of our precedent.

Nor do we find particularly edifying the debate over the exact reach of Stratton Oakmont, the New York case Congress apparently meant to overrule. As the Seventh Circuit has recognized,

[a]lthough the impetus for the enactment of § 230(c) as a whole was a [decision] holding an information content provider liable, as a publisher, because it had exercised some selectivity with respect to the sexually oriented material it would host for customers, a law's scope often differs from its genesis. Once the legislative process gets rolling, interest groups seek (and often obtain) other provisions.

Craigslist, 519 F.3d at 671. Both parties make a lot of sound and fury on the congressional intent of the immunity under section 230, but such noise ultimately signifies nothing. It is the language of the statute that defines and enacts the concerns and aims of Congress; a particular concern does not rewrite the language.

In holding that the district court properly dismissed the plaintiff's claim, the Court found that section 230 provides a shield for all publication decisions, including editing, removing, or posting, with respect to content generated entirely by third parties (at 569-570):

Leaving no stone unturned, Barnes reminds us that the statutory purpose of the Amendment is to encourage websites affirmatively to police themselves, not to provide an excuse for doing nothing. This argument from statutory purpose has more force to it, because section 230(c) is, after all, captioned "Protection for `good samaritan' blocking and screening of offensive material." Cf. Roommates.Com, 521 F.3d at 1163-64. It would indeed be strange for a provision so captioned to provide equal protection as between internet service providers who do nothing and those who attempt to block and screen offensive material. As the Seventh Circuit has recognized, if section (c) did provide equal protection, then "[internet service providers] may be expected to take the do-nothing option and enjoy immunity" because "precautions are costly." GTE Corp., 347 F.3d at 660.

A closer look at the whole of section 230(c), we believe, makes sense of this apparent contradiction. Subsection (c)(1), by itself, shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties. Subsection (c)(2), for its part, provides an additional shield from liability, but only for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider ... considers to be obscene ... or otherwise objectionable." § 230(c)(2)(A). Crucially, the persons who can take advantage of this liability are not

[565 F.3d 570]

merely those whom subsection (c)(1) already protects, but any provider of an interactive computer service. See § 230(c)(2). Thus, even those who cannot take advantage of subsection (c)(1), perhaps because they developed, even in part, the content at issue, see Roommates.Com, 521 F.3d at 1162-63, can take advantage of subsection (c)(2) if they act to restrict access to the content because they consider it obscene or otherwise objectionable. Additionally, subsection (c)(2) also protects internet service providers from liability not for publishing or speaking, but rather for actions taken to restrict access to obscene or otherwise objectionable content.11

Similarly, the California Supreme Court in Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146 P.3d 510 (Cal. 2006) concluded that 47 U.S.C. § 230 is to be construed broadly in favor of immunity. Specifically, it held that section 230 provides immunity from liability regardless of whether the defendant would be characterized as a "publisher" or "distributor" under traditional defamation law and that this immunity also extends to "active" and "passive" users in addition to internet providers (at 58):

In the Communications Decency Act of 1996, Congress declared: "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." (47 U.S.C. § 230(c)(1).)1 "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." (§ 230(e)(3).)

These provisions have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source. The immunity has been applied regardless of the traditional distinction between "publishers" and "distributors." Under the common law, "distributors" like newspaper vendors and book sellers are liable only if they had notice of a defamatory statement in their merchandise. The publisher of the newspaper or book where the statement originally appeared, however, may be held liable even without notice.

In this case, the Court of Appeal diverged from the prevailing interpretation of section 230. It decided that common law "distributor" liability survived the congressional grant of immunity, so that Internet service providers and users are exposed to liability if they republish a statement with notice of its defamatory character.

We granted review to decide whether section 230 confers immunity on "distributors." Because this case involves the liability of an individual rather than a service provider, we asked the parties to address the definition of the statutory term "user." We also requested briefing on whether the immunity analysis is affected if a user engages in active rather than passive conduct. We conclude that section 230 prohibits "distributor" liability for Internet publications. We further hold that section 230(c)(1) immunizes individual "users" of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal's judgment.

We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.

In Murphy v. Twitter, Inc., 60 Cal.App.5th 12, 274 Cal.Rptr.3d 360 (Cal. Ct. App. 2021), the California Court of Appeal for the First District held that Twitter was entitled to 47 U.S.C. § 230 immunity because it met all three of the requirements for liability protection, which are: (1) the defendant is a provider or user of an interactive computer service; (2) the plaintiff is seeking to treat the defendant as a publisher or speaker under a state law cause of action; and (3) the information in issue was provided by another information content provider (at 24-26):

Section 230(c)(1), which is captioned "Treatment of publisher or speaker," states: "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." As relevant here, the statute also expressly preempts any state law claims inconsistent with that provision: "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." (§ 230(e)(3).) Read together these two provisions "protect from liability (1) a provider or user of an interactive

[274 Cal.Rptr.3d 369]

computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider." (Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1100–1101, fn. omitted (Barnes ); Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804–805, 52 Cal.Rptr.3d 376 (Delfino ).)

Two California Supreme Court cases, Hassell, supra, 5 Cal.5th 522, 234 Cal.Rptr.3d 867, 420 P.3d 776 and

[60 Cal.App.5th 25]

Barrett v. Rosenthal (2006) 40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146 P.3d 510 (Barrett), have addressed immunity under section 230, discussing at length statutory interpretation and judicial construction of the statute.4 In both cases, our high court concluded section 230 is to be construed broadly in favor of immunity. (Hassell, at p. 544, 234 Cal.Rptr.3d 867, 420 P.3d 776 ["broad scope of section 230 immunity" is underscored by "inclusive language" of § 230(e)(3), which, "read in connection with section 230(c)(1) and the rest of section 230, conveys an intent to shield Internet intermediaries from the burdens associated with defending against state law claims that treat them as the publisher or speaker of third party content, and from compelled compliance with demands for relief that, when viewed in the context of a plaintiff's allegations, similarly assign them the legal role and responsibilities of a publisher qua publisher"]; Barrett, at p. 39, 51 Cal.Rptr.3d 55, 146 P.3d 510 [immunity provisions within § 230 "have been widely and consistently interpreted to confer broad immunity"].) California's appellate courts and federal courts have also generally interpreted section 230 to confer broad immunity on interactive computer services. (See Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 572, 96 Cal.Rptr.3d 148 [concluding a "general consensus to interpret section 230 immunity broadly" could be derived from California and federal court cases]; Delfino, supra, 145 Cal.App.4th at p. 804, 52 Cal.Rptr.3d 376; accordDoe v. MySpace Inc. (5th Cir. 2008) 528 F.3d 413, 418; Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1123 ["reviewing courts have treated § 230(c) immunity as quite robust"]; but see Barnessupra, 570 F.3d at p. 1100 [text of § 230(c) "appears clear that neither this subsection nor any other declares a general immunity from liability deriving from third-party content"].)

Murphy's claims against Twitter satisfy all three conditions for immunity under section 230(c)(1). First, an " ‘interactive computer service’ " is "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server." (§ 230(f)(2).) Twitter meets that description, as Murphy concedes. (See American Freedom Defense Initiative v. Lynch (D.D.C. 2016) 217 F.Supp.3d 100, 104 [Twitter is an interactive computer service under the CDA]; Fields v. Twitter, Inc. (N.D.Cal. 2016) 217 F.Supp.3d 1116, 1121, affd. 881 F.3d 739 (9th Cir. 2018); Brittain v. Twitter, Inc. (N.D.Cal. Jun. 10, 2019, No. 19-cv-00114-YGR) 2019 WL 2423375 at p. *2.)

Second, Murphy's claims all seek to hold Twitter liable for requiring her to remove tweets and suspending her Twitter account and those of other users. Twitter's

[274 Cal.Rptr.3d 370]

refusal to allow certain content on its platform, however, is

[60 Cal.App.5th 26]

typical publisher conduct protected by section 230. " ‘[Section] 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.’ " (Barrettsupra, 40 Cal.4th at p. 43, 51 Cal.Rptr.3d 55, 146 P.3d 510, quoting Zeran, supra, 129 F.3d at p. 330; Fair Housing Council of San Fernando Valley v. Roommates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1170–1171 ["any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230"].)

The third prong is also satisfied here, because Murphy's claims all concern Twitter's removal of or refusal to publish "information provided by another information content provider." An " ‘information content provider’ " is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." (§ 230(f)(3).) All of the content that Murphy claims Twitter required her or others to remove and is wrongfully censoring was created and posted by Murphy and others, not Twitter. (See, e.g.Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 207, 222 Cal.Rptr.3d 250 (Cross); Federal Agency of News LLC v. Facebook, Inc. (N.D.Cal. 2020) 432 F.Supp.3d 1107, 1118 (Federal Agency of News) [complaint admitted Federal Agency of News LLC was the source of content Facebook, Inc. (Facebook) removed].)

In the unpublished opinion of Albert v. Yelp, Inc., G051607 (Cal. Ct. App. July 15, 2016), the California Court of Appeal for the Fourth District further held that section 230 immunity extends to defamation claims that rest on the internet provider's delay in removing defamatory messages by a third party (at 9-10):

Since Yelp is an internet service provider, it is immunized, under section 230 of the Telecommunications Act of 1996, for defamation contained in any third party reviews on a Yelp page pertaining to a given business.8 The case law on this point is conclusive. (See Zeran vAmerica OnlineInc. (4th Cir. 1997) 129 F.3d 327 [no liability on part of internet provider for delay in removing defamatory messages by unidentified third party]; Batzelsupra, 333 F.3d 1018 [section 230 immunized moderator of website for third party post accusing woman of possession of art stolen by Nazis]; Nemet ChevroletLtdvConsumeraffairs.comInc. (4th Cir. 2009) 591 F.3d 250 [website that posted complaints about automobiles sold or serviced by particular dealer protected by section 230]; Hupp vFreedom CommunicationsInc. (2013) 221 Cal.App.4th 398 [newspaper website not responsible for five postings by author of article on the website]; Jones vDirty World Entertainment Recordings LLC (6th Cir. 2014) 755 F.3d 398 (Dirty World) [website not responsible for third party posts concerning high school teacher]; see generally Almeida vAmazon.comInc. (11th Cir. 2006) 456 F.3d 1316, 1321, quoting Zeran vAmerica OnlineInc., supra, 129 F.3d at p. 330 ["The majority of federal circuits have interpreted the CDA to establish broad 'federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.'"].)

Page 10

All doubt is removed when we examine two of the most extreme cases illustrating the immunizing effect of section 230, Barnes vYahoo!Inc. (9th Cir. 2009) 570 F.3d 1096 (Barnes) and Carafano vMetrosplash.comInc. (9th Cir. 2003) 339 F.3d 1119. These cases involved more than simple defamatory third party comments. Rather, in both cases third parties were able to use a website to cast the plaintiff in a decidedly negative false light. In Barnes, the ex-boyfriend of the plaintiff posted revenge porn on the website. The court held the website itself was still immune under section 230. (Barnessupra, 570 F.3d at p. 1103 [to hold the website responsible would be to treat it like a publisher in contravention of section 230].) And in Carafano, the court held a dating website could not be held responsible for a third party's virtual impersonation of an actress on the site. Of course, section 230 certainly does not immunize third parties who actually write defamatory posts to a website. (E.g.Bentley Reserve LP vPapaliolios (2013) 218 Cal.App.4th 418 [former tenant could be liable for postings on Yelp about landlord])9, but the website itself is unreachable.

Authorities:
47 U.S.C. § 230
Barnes v. Yahoo!, Inc., 565 F.3d 560 (9th Cir. 2009)
Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146 P.3d 510 (Cal. 2006)
Murphy v. Twitter, Inc., 60 Cal.App.5th 12, 274 Cal.Rptr.3d 360 (Cal. Ct. App. 2021)
Albert v. Yelp, Inc., G051607 (Cal. Ct. App. July 15, 2016)