Is the Scope of Immunity under the CDA Shrinking?
Is the Scope of Immunity under the CDA Shrinking?
Is the Scope of Immunity under the CDA Shrinking?

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    Since §230 of the Communications Decency Act (CDA) was passed in 1996, online service providers (OSPs) and website operators have rested easy under the comfort of blanket immunity. Under the CDA, OSPs couldn’t be held liable for tortious content posted by others, but the CDA’s immunity wasn’t a free pass for copyright infringement or other intellectual property based claims. The CDA specifically stated that it was not designed to preempt intellectual property claims. However, in recent weeks, the scope of the CDA’s immunity and way in which the intellectual property exception should be interpreted has been called into question. Two recent cases—Fair Housing Council of San Fernando v. and Jane Doe v. FriendFinder Network Inc. have interpreted the CDA in ways that might have repercussions.

    Before the CDA, courts looked at whether online service providers were “passive conduits” of material to determine if they were liable for their users’ speech. In the Stratton Oakmont v. Prodigy case, Prodigy was liable for user comments because they had voluntarily edited some of the messages. The outcome of that case essentially encouraged online service providers to refrain from editing content to avoid opening themselves up to liability. This disincentive to maintain editorial control over content helped prompt the CDA, which granted OSPs immunity for tortious material posted by others.

    Now, the recent and Friendfinder cases are calling that immunity into question from different vantage points. In Roommates, the Fair Housing Council filed suit against the website, alleging that it violated the Fair Housing Act. Because the site provided pull-down menus that allowed users to choose what kind of roommate they wanted based on things like race, sexual orientation and gender, the court found that they were responsible for developing content and that they were not entitled to immunity under the CDA. The court also found that the site was not entitled to immunity for its search function, which allowed users to screen out potential users based on the discriminatory criteria. Friendfinder was not entitled to immunity for both of these actions for the same reason—the court found they played an active role in developing the content, and therefore, were content providers. Ultimately, the site was liable because it was directly involved in developing a system that encouraged discriminatory practices.

    In Friendfinder, the plaintiff filed claims against an adult dating site once she discovered that someone had created a fake profile that “reasonably identified” her, and posted it on the site. When the plaintiff complained the site removed the profile, but the profile continued to appear in “teaser” ads for the dating site. The court dismissed the plaintiff’s tort claims for defamation and intentional infliction of emotional distress—but didn’t dismiss her claim based on her “right of publicity.” Though there is no uniform federal right of publicity, the right to control the commercial use of one’s identity is it considered a general intellectual property right. The judge reasoned that Friendfinder wasn’t entitled to the CDA’s usual brand of immunity due to the intellectual property provision that states the CDA does not preempt intellectual property laws. Up until this case, the intellectual property provision CDA was interpreted as being limited to federal intellectual property laws, and here, the right to publicity claim was grounded in state law.

    At this point, it is unclear what kind of impact these cases will have. Some fear that cases like Roommates will encourage OSPs and website operators to censor material, and provide fodder for litigation that will have a chilling effect on online speech. However, the judge seemed to emphasize that the holding was narrow, fact specific, and that as long as sites don’t engage in either illegal behavior or encourage others to do so, they should be in the clear.

    However, the Friendfinder case raises its own peculiar issue. Eric Goldman pointed out that if it stands, it could complicate e-business, and businesses that operate across state lines. Since right to publicity claims vary from state to state, sites would have to tailor their practices to the lowest common denominator and make sure they followed the most restrictive state laws, or face the possibility of being liable for violating a state intellectual property law.

    Over the years, the CDA has been criticized for giving OSPs too much of a free pass. For example, sites like seem to be reaping the benefits of the CDA’s immunity by encouraging anonymous users to post whatever they want—be it tortious, defamatory or just plain mean. But most OSPs and website operators don’t have the resources to police all of their content, and smaller sites might crumble under the prospect of being open to new kinds of liability. Hopefully, these recent holdings don’t mark a shift in courts’ willingness to hold sites liable for content posted by others at the expense of uninhibited dialogue.

    For more on the potential impact of these cases, see: