Intellectual Property Law

Immunity for users or providers of Interactive Computer Services

By IBLS Editor

The United States (U.S.) Communications Decency Act (CDA) is one of the most significant Internet laws in the U.S, codified at 47 U.S.C.A. § 230. CDA shields from liability, interactive computer service providers that publish or display content provided by third parties.  The U.S. policy, among others, as expressed in the CDA, was to promote the development of the Internet and other interactive computer services, to preserve the free Internet market, and to ensure enforcement of criminal laws that punish obscenity, stalking, and harassment by means of computer. This is, CDA intended to balance freedom of speech, the enforcement of criminal laws, and the development of Internet services. 

CDA § 230(c) (47 U.S.C.A § 230(c)), titled Protection for Good Samaritan Blocking and Screening of Offensive Material,  expressly states that no provider or user of an interactive computer service shall be treated as publisher or speaker of information provided by another content provider.  Also, providers or users of interactive computer services shall not be held civilly liable on account of their good faith actions taken to restrict access or availability of obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable content, even if constitutionally protected.  For instance, Facebook is immune from civil liability when a third party uploads objectionable content about another person.  In this case, Facebook may not be sued by the victim but if content includes any of the above-listed material, Facebook is entitled to block or screen this material. 

According to the above immunity described by CDA § 230(c), interactive computer services are treated differently than publishers in print, television and radio; they are immune from liability as long as they are not the providers of content.  The term "interactive computer services" (ICS) has been broadly interpreted by U.S. courts as to include ISPs, but it is clear that ICS does not include the term "information content provider." 

Courts have been consistent in their interpretation of ICS in light of the policy expressed by the legislator.  The case of Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) is an example of an interpretation of the term ICS and the application of this statutory immunity.  This case involved a victim of identity theft and the Internet services of a matchmaking website.  The defendant is a U.S. matchmaking site. Members join this site for a fee and post their profiles and access those of other members.  Yet, the site also offers a trial service for one month. Users are not allowed to enter last names, phone numbers, addresses, and e-mail addresses. The defendant provides a questionnaire that users fill out.  This questionnaire contains both trivia questions and suggestive and explicit questions.  Pictures are allowed but they are reviewed by the Internet company before they can be posted.  Hence, the company does not review users' answers to the questionnaire. The plaintiff is a famous actress. 

A third person located in a European country, using the matchmaking website trial period, opened a profile posing as the plaintiff.  This person filled out the questionnaire using objectionable language and posted plaintiff's address and phone number.  Later, plaintiff began receiving phone calls and messages in response to the matchmaking information.  Plaintiff reported this incident to the local authorities and moved to a hotel afraid of the calls she was receiving.  Plaintiff sued the matchmaking site alleging invasion of privacy, defamation, negligence, and misappropriation. 

The trial court granted defendant's motion for summary judgment.  However, the court rejected defendant's argument for immunity under 47 U.S.C. § 230(c) when it found that the company provided the users' questionnaire.  The court rejected plaintiff's invasion of privacy claim stating that plaintiff's phone number and address was "newsworthy." that the matchmaking company did not act in disregard of plaintiff's privacy. Plaintiff's claim for defamation, negligence, misappropriation was rejected because the court considered that the defendant did not act with malice.  Plaintiff appealed.

On appeal, the court affirmed the trial court's decision albeit on other grounds.  The court of appeals held that the matchmaking site did have statutory immunity under 47 U.S.C. §230(c) even if the site provided a questionnaire for the users.  Even if the matchmaking site provided users with the questionnaire, users were the ones who ultimately entered the information. 

Full post as published by IBLS Internet Law Blog on February 02, 2009 (boomark / email).