Want to stay current on e–commerce law? Sign up for Email Newsletter.
Two U.S. Court of Appeals Release Judgments on the Scope of the Immunity Provided to ISPs Under CDA
The scope of immunity provided by the "Good Samaritan" provisions of the Communications Decency Act of 1996 (the "CDA") has twice been raised in U.S. appeal courts in recent weeks.
In the first case, on October 21, 2003, the U.S. Court of Appeals (7th Cir.) affirmed the decision of the District Court in Doe v. GTE, in which decision, the District Court had dismissed charges filed by college athletes at several universities against (i) organizations that offered video tapes of the athletes taken without their knowledge or consent in locker rooms, bathrooms and showers, for sale on the Internet, (ii) the college officials who had failed to detect the cameras (or prevent their installation) and (iii) the Internet Service Providers (ISPs) who provided the Internet access and web hosting services to the sellers.
At trial, the sellers either defaulted or were dismissed when they could neither be located nor served, and the college officials prevailed on qualified immunity. The claim against the ISPs, GTE Corp. and Genuity Inc., was dismissed based on §230(c) of the CDA, 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", and §230(e)(3) of the CDA, which states that this provision pre-empts contrary state law, therefore no cause of action could be brought and no liability imposed under any state or local law that is inconsistent with this section of the CDA.
On appeal, the plaintiffs-appellants specifically invoked the U.S. federal Electronic Communication Privacy Act, arguing that the ISPs intercepted and disclosed oral communications (the video tapes also included audio). The Court of Appeals rejected this argument as well on the reasoning that the defendants could not be condemned as they were merely assistants and not the direct perpetrator of the acts. The plaintiffs also asserted that GTE was liable for "negligent entrustment of a chattel" (see Restatement (Second) of Torts §318). However, the Court held that GTE furnished a service, and not a chattel and could therefore not be held accountable thereunder.
Notwithstanding the foregoing, the Court may have opened a door for similar cases in the future when it acknowledged that the Plaintiffs "would have had a better argument that, by its contracts with the (sellers), GTE assumed a duty to protect them". Because no such third-party beneficiary assertion had been advanced, the Court could not decide how the argument would have been determined.
Moreover, in coming to its decision, the Court of Appeals noted that previous interpretations of §230 of CDA suggested that ISP's could not be liable for either censoring or failing to censor materials. Notwithstanding this acknowledgment, the Court of Appeals indicated that such an interpretation of §230 makes an ISP indifferent to content on their sites, which could hardly be the purpose behind §230, as the section is contained under the title "Protection for 'Good Samaritan' blocking and screening of offensive material" in the CDA. While an alternative interpretation of §230(c)1 was discussed, Judge Easterbrook declined to support a specific interpretation.
On appeal, the plaintiffs-appellants specifically invoked the U.S. federal Electronic Communication Privacy Act, arguing that the ISPs intercepted and disclosed oral communications (the video tapes also included audio). The Court of Appeals rejected this argument as well on the reasoning that the defendants could not be condemned as they were merely assistants and not the direct perpetrator of the acts. The plaintiffs also asserted that GTE was liable for "negligent entrustment of a chattel" (see Restatement (Second) of Torts §318). However, the Court held that GTE furnished a service, and not a chattel and could therefore not be held accountable thereunder.
Notwithstanding the foregoing, the Court may have opened a door for similar cases in the future when it acknowledged that the Plaintiffs "would have had a better argument that, by its contracts with the (sellers), GTE assumed a duty to protect them". Because no such third-party beneficiary assertion had been advanced, the Court could not decide how the argument would have been determined.
Moreover, in coming to its decision, the Court of Appeals noted that previous interpretations of §230 of CDA suggested that ISP's could not be liable for either censoring or failing to censor materials. Notwithstanding this acknowledgment, the Court of Appeals indicated that such an interpretation of §230 makes an ISP indifferent to content on their sites, which could hardly be the purpose behind §230, as the section is contained under the title "Protection for 'Good Samaritan' blocking and screening of offensive material" in the CDA. While an alternative interpretation of §230(c)1 was discussed, Judge Easterbrook declined to support a specific interpretation.
The immunity provided under §230 was also raised before the California Court of Appeal in Barrett et al. v. Rosenthal. At issue in this case was the scope of immunity provided to those who do not originate but rather republish defamatory statements. In its decision, the Court refused to adopt the reasoning of the U.S. Federal Court in Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, which interpreted the terms "publisher or speaker" in §230 to include distributors. Instead, the California Court of Appeal held that the CDA Good Samaritan provisions should be read in accordance with the common law principle of distributor or knowledge based liability and not provide blanket immunity to distributors who would otherwise be liable under common law
For a copy of Doe v. GTE, visit:
http://www.caselaw.1p.findlaw.com/data2/circs/7th/024323p.pdf
For a copy of Barrett et al. v. Rosenthal, visit:
http://www.courtinfo.ca.gov/opinions/documents/A096451.PDF