Third-Party Content

By now you've heard that the Ninth Circuit, sitting en banc, reaffirmed the previous Roommates.com decision. There's lots of excellent coverage out there -- some notable examples include the Online Liability Blog, Info/Law, Internet Cases, and Eric Goldman's Law & Technology Blog. The new decision, written by Judge Kozinski, may have exploded forever the longstanding assumption (among Internet lawyers, at least) that website operators would always be immune under section 230 of the Communications Decency Act (CDA 230) for publishing and organizing content provided by their users, so long as the underlying claim didn't involve intellectual property, federal criminal law, or the Electronic Communications Privacy Act. Nevertheless, we can read the case narrowly, and its impact could be inconsequential if limited to its facts. Unfortunately, aspects of the opinion make a more expansive reading possible.   read more »

In what appears to be the first case of its kind, a federal court in New Hampshire has ruled that the immunity provisions in section 230 of the Communications Decency Act (CDA 230) do not bar a state law claim for a violation of a person's "right of publicity." In so holding, the court expressly disagreed with the Ninth Circuit's decision in Perfect 10 v. CCBill LLC, which held that CDA 230 exempts only federal intellectual property law claims from its protections.   read more »

The case involves the typically disturbing facts that often arise in the CDA 230 context. The plaintiff, proceeding pseudonymously, sued defendant Friendfinder Network, which operates a number of websites, including “AdultFriendFinder.com” that bills itself as “the World’s Largest SEX and SWINGER Personal Community.” To participate, users register by entering a variety of personal information, creating online profiles that can be viewed by other members of the community.

New Jersey prosecutors have subpoenaed the controversial gossip site JuicyCampus as part of an investigation into whether the site is violating the New Jersey Consumer Fraud Act. Reports (here, here, and here) indicate that prosecutors believe that the website may be running afoul of the law by suggesting in its Terms & Conditions that it does not allow the posting of offensive material but providing no enforcement of that rule or way for users to report objectionable content. (New Jersey authorities also subpoenaed AdBrite and Google for information about how JuicyCampus represented itself to these advertising services.) Assuming the investigation moves forward, this case is sure to be a flashpoint for further debate about section 230 of the Communications Decency Act (CDA 230).   read more »