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Facebook entitled to Communications Decency Act (CDA) immunity as an “interactive computer service” — Klayman v. Zuckerberg, 2012 WL 6725588 (D.D.C. Dec. 28, 2012)

This is one of the few (but growing) cases recognizing that Facebook qualifies as an “interactive computer service” under the Communications Decency Act (CDA).  In particular, the court finds that Facebook is an interactive computer service when acting as the publisher of a user-created Facebook page.

The plaintiff (Klayman), a Facebook user who is the chairman and general counsel of an organization called Freedom Watch, found a Facebook page titled “Third Palestinian Intifada.”  This Facebook page “called for an uprising beginning on May 15, 2011, after Muslim prayers [were] completed, announcing and threatening that ‘Judgment Day will be brought upon us only once Muslims have killed all Jews.”  This page caught the attention of the Public Diplomacy Minister of Israel, who wrote a letter to Facebook requesting that they take down this and related pages.  Klayman alleges that Facebook initially resisted removing the page, but eventually did so “begrudgingly.”  Klayman then filed an action against Facebook and its CEO, Mark Zuckerberg, in the District of Columbia, who removed the action to federal court.  The action asserted claims of negligence and assault against the defendants and sought, among other things, injunctive relief and punitive damages of over $1 billion.

Facebook argued that it had immunity under the CDA, and the court agreed.  First, the court found that Facebook meets the definition of an “interactive computer service provider” because its website gives its users the ability to create, upload, and share various types of information with multiple users.  Second, the court ruled that the allegations supporting the negligence and assault claims are based on Facebook’s status as a publisher or speaker.  Third, the court concluded that Facebook was not the “information content provider” because it did not contribute in any way to the contents of the Facebook page in question.

LegalTXTS Lesson:  The analysis of CDA immunity in this case is straightforward, but it’s noteworthy for concluding that Facebook is an “interactive service provider” for purposes of the CDA.  Not many have cases have addressed the issue.  This case joins  Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011), and Young v. Facebook, Inc., 20120 WL 42690304 (N.D. Cal. Oct. 25, 2010) (both cited in Klayman), as well as Gaston v. Facebook, Inc., 2012 WL 629868 (D. Or. Feb.2, 2012).  Note, though, that the status of a social media website status as an “interactive service provider” could hinge on the functionality of the site at issue (e.g., Facebook newsfeed vs. Facebook ads).

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AF Holdings, LLC owns the copyrights to various porn videos.  AF Holdings has filed numerous copyright infringement actions against individuals who download and share its videos illegally through BitTorrent, an online peer-to-peer sharing tool.  Besides targeting the individuals actively downloading and sharing files—whose identities are often unknown and therefore end up being named as “Doe” defendants—AF Holdings goes after owners of the Internet connections used in the torrent activity (the “Network Defendants”).   AF Holdings sued the Network Defendants under a negligence theory.  AF Holdings alleged that the Network Defendants breached their duty to secure their Internet connections from third parties who use the connections for unlawful activity.  In a pair of similar lawsuits, the courts rejected AF Holding’s negligence claims.  See AF Holdings, LLC v. John Doe and Josh Hatfield, 2012 WL 3835102 (N.D. Cal. Sept. 4, 2012); AF Hodlings, LLC v. John Doe and John Botson, 2012 WL 4747170 (N.D. Cal. Oct. 3, 2012)

No legal duty to secure Internet connection to prevent copyright infringement

AF Holdings argued that the Network Defendants owed it a duty to secure their Internet connections to prevent infringement of AF Holdings’ copyrighted works.  The duty at issue was one of “non-feasance,” or the failure to take certain steps, as opposed to “misfeasance,” which involves activity putting the plaintiff in a worse position, such as exposing the plaintiff to risk of peril.  A duty arises in non-feasance situations when the plaintiff has a special relationship with the defendant.  Finding no special relationship between the Network Defendants and AF Holdings, the court concluded that the Network Defendants owed no legal duty to protect AF Holdings against copyright infringement.  The courts therefore dismissed the negligence claims.

Copyright Act preempts negligence claims

Part of the Network Defendants’ defense was that the negligence claims are preempted by the Copyright Act of 1976 because they seek protection for the same exclusive rights that the Act protects.  A state law claim is preempted by the Act when (1) the work at issue comes within the subject matter of copyright, and (2) the rights granted by state law are equivalent to the exclusive rights of copyright holders under section 106 of the Act.  The Network Defendants cleared the first test easily because AF Holdings’ videos clearly are protected by copyright.  In analyzing the second issue, most courts determine whether the state law claim contains an “extra element” that is different or in addition to a claim based on the Copyright Act.  The only “extra elements” in AF Holdings’ negligence claim were the elements of duty and breach of duty.  Since the Network Defendants had no duty to secure their Internet connections to prevent copyright infringement, the negligence claims had no extra elements to be saved from being preempted.  Essentially, AF Holdings repackaged its copyright infringement claim into a negligence claim.

CDA immunity applies

The Network Defendants also claimed immunity under the Communications Decency Act (“CDA”).  The court in the Hatfield case found it unnecessary to decide the issue given the dismissal of the negligence action on other grounds, but the court in the Botson case ruled that the defendant had immunity.  A defendant qualifies for CDA immunity if (1) it is the provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue is provided by another information content provider.  Botson met these qualifications, the court found.  AF Holdings alleged that Botson was the provider of a computer service (i.e., the Internet connection) to pirate the videos.  AF Holdings also treated Botson as a copyright infringer or a participant in the infringement.  Finally, the information at issue (the videos) were provided by another content provider, namely the “Doe” defendant.

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Reliance on Communications Decency Act immunity does not convert a lawsuit into a federal case — Sulla v. Horowitz, Civ. No. 12-00449 (D. Haw. Oct. 4, 2012)

“You wanna make a federal case out of it?”  Well, maybe you do, but as the federal district court of Hawaii recently explained, citing a federal statute and arguing that the Internet is involved won’t cut it.

The plaintiff (Sulla) was counsel to a party that foreclosed on property owned by the  nonprofit corporation that one of the defendants (Horowitz) owned.  Sulla alleged that Horowitz and his co-defendant began publishing defamatory statements about Sulla over the Internet, including through a website with a domain name bearing his name.  Sulla sued Horowitz for defamation in state court, but the defendants removed the case to federal court, apparently based on diversity jurisdiction (i.e., all the plaintiffs are citizens of a different state than all the defendants).  Noting that all the parties might be citizens of Hawaii, the federal court issued an order to show cause why the action should not be sent back to state court.  Defendants’ briefing on the jurisdictional issue did not allay the court’s concerns.

The defendants argued that the court actually had federal question jurisdiction.  The basis for their argument?   Because the allegedly defamatory statements were published on the Internet, defendants argued, the court has exclusive federal jurisdiction over the case based on the Communications Decency Act (CDA).  The court disagreed, giving a quick lesson on how the CDA and federal question jurisdiction work.

First, “Section 230 [of the CDA] does not shield persons from liability for defamatory statements that they make via the internet.”  Second, whether CDA immunity applies is irrelevant to the analysis of federal jurisdiction.  The court cited the basic rule that federal question jurisdiction cannot arise out of a defense (as compared to a claim) based in federal law.  CDA immunity is a defense, so the possibility that the CDA might protect the defendants from liability for defamation did not convert the lawsuit into a “federal case.”

The court also found the defendants’ other arguments for federal jurisdiction unpersuasive and sent the case back to state court.

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Section 230 of the CDA protects online news website from defamatory comment posted by anonymous person — Hadley v. Gatehouse Media Freeport Holdings, Inc.,2012 WL 2866463 (N.D. Ill. July 10, 2012)

This is a pretty straightforward Section 230 case.  Gatehouse Media Freeport Holdings, Inc. publishes The Journal-Standard.  Like many modern newspapers, The Journal-Standard is available in print and online.  The Journal-Standard published an article about Bill Hadley, a candidate for political office.  An anonymous person using the name “Fuboy” posted an online comment to the article saying that “Hadley is a Sandusky waiting to be exposed.  Check out the view he has of Empire from his front door.”  Hadley sued Gatehouse Media for defamation.

Gatehouse Media got the lawsuit dismissed based on Section 230(c)(1) of the Communications Decency Act of 1996, which provides that “[n]o 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).  As a website host that allows readers to post comments, Gatehouse Media was an “interactive computer service.”  A user who posts comments on the newspaper’s website is “another information content provider.”  That means Gatehouse Media is not considered the publisher or speaker of the allegedly defamatory comment directed at Hadley.

Hadley hypothesized that Gatehouse Media could have invented a fictitious person named “Fuboy” to post the comment anonymously.  There being no evidence, the court disregarded the argument as “sheer speculation.”

LegalTXT Lesson: Section 230 is a powerful shield against defamation in the digital age, and a much needed one given the ease with which anyone with a computer and an Internet connection can post outlandish remarks under the cover of anonymity on a website hosted by a member of the mainstreammedia.