Section 230 Remains a Powerful Weapon to Defend Online Businesses

The Ninth Circuit affirmed the continued  viability of the Section 230 defense, which is often employed by online review boards, social media platforms, and other crowd-sourced website operators. In Kimzey v. Yelp! Inc., 2016 U.S. App. LEXIS 16665, (9th Cir. Sep. 12, 2016), the Court found that the plaintiff could not plead around the broad immunity granted by Section 230 of the Communications Decency Act. Specifically, Yelp’s publication of user-generated speech harmful to plaintiff was not actionable. Id. at 3.

Section 230 provides in relevant part, “[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 USC §230(c)(1). “Interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…” while “information content provider” is separately 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.” Id. at §230(f)(2)-(3). Section 230 effectively “immunizes providers of interactive computer services against liability arising from content created by third parties.” Kimzey, at 1, citing Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). Additionally, Section 230 provides a “Good Samaritan” safe harbor, which precludes liability for an operator when it restricts access or scrubs “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content. 47 USC §230(c)(2)(A). Despite these protections, the Section 230 defense is not absolute. Rather, where the “interactive computer service” and the “information content provider” are one in the same, immunity will not apply.

Plaintiff attempted to hold Yelp liable for an unfavorable review about the Plaintiff’s locksmith business by alleging more nuanced theories. First, plaintiff alleged that the post was not genuinely user-generated, and that instead Yelp “caused [the review] to appear” by copying it from another source and further disseminated the review in advertisements on Google and Yelp.  Id., at 10. Second, plaintiff alleged that liability vested because the review appeared with Yelp’s star-rating indicia. Id. at 12. The Court found that neither allegation amounted to a “creation” or “development” by Yelp which would take it beyond the scope of immunity provided by Section 230. Id. at 14.

Because Yelp’s star-rating system comprises a “neutral tool” of “voluntary inputs” from users, it did not amount to “creation” or “development” by Yelp such that the company could be considered an “information content provider.” Id. at 15. Similarly, even if Yelp obtained the review from another website and republished it or provided it to Google as an advertisement, liability would not vest because “[n]othing in the text of the CDA indicates that immunity turns on how many times an interactive computer service publishes ‘information provided by another information content provider.’” Id. at 16.  The Court concluded that “proliferation and dissemination of content does not equal creation or development of content.” Id. The Court of Appeals affirmed the Western District of Washington’s dismissal of Plaintiff’s complaint.

Every online business accused of republishing false, misleading, defamatory, or other unlawful content should have a Section 230 defense close at hand, as the Kimzey decision may further heighten a plaintiff’s burden to show that the objectionable content was created or developed by the business. However, businesses must also recognize that their immunity is not absolute and liability remains, where for example, the business creates the content itself, or where it is “responsible, in whole or in part” for developing the content. Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). Therefore, best practices dictate that online businesses refrain from inducing the creation of any particular content, or exercising substantive editorial authority in the creation of content. Instead, online business should remain committed to providing a neutral platform for third party content generation, and when appropriate, only act to restrict “objectionable” content under Section 230’s “Good Samaritan” safe harbor.

The full opinion in In Kimzey v. Yelp! Inc., 2016 U.S. App. LEXIS 16665, (9th Cir. Sep. 12, 2016), is available here.