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ASK.COM Gets Section 230 Immunity; ROOMATES.COM Decision Headed for Rehearing
November 20, 2007
ASK.COM GETS SECTION 230 IMMUNITYA search engine whose spacing snafu resulted in embarrassment to a political candidate is immune from liability under Section 230 of the Communications Decency Act, according to a recent decision from a federal trial court in New York. The case represents one more example of the deference courts continue to show that particular provision.
The plaintiff in the case was William Murawski, a long shot candidate for New York Governor. One of the defendants, a politically oriented Web site – Politics1.com – published Murawski’s name among a number of candidates. Politics1.com listed Murawski’s name directly beneath a candidate described as a "communist political organizer."
Apparently checking on his publicity, Murawski entered his name in Ask.com's search engine, and that’s when the trouble began. The Ask.com hit, drawn from the Politics1.com Web site, read "communist political organizer William Murawski."
Apparently, unable to take a joke, Murawski sued both Ask.com and Politics1.com for defamation. The case didn’t get far.
The court dismissed the claim against Ask.com, finding that Section 230 prevented the claim. Section 230 prohibits a "provider or user of an interactive computer service" from being treated as the "publisher" of content provided by another.
According to the court, the law is clear. An internet search engine, such as Ask.com, "provides or enables computer access by multiple users to a computer server." That makes it eligible for Section 230 coverage. And "the text displayed from Politics1.com when plaintiff ran a search from his name on Ask.com was 'information provided by another content provider,' specifically the Politics1.com website." That makes the case clear cut.
The court also found that the plaintiff’s evidence that he’d informed Ask.com about the negative implications of the result, and that Ask.com had not removed the material did not change the result. Because a decision about when to remove content "falls squarely within Ask.com's exercise of a publisher's traditional role," that conduct was immune.
The court dismissed the claims against Politics1 under more traditional defamation analysis. The court found simply that Politics1 never referred to Murawski as a communist. The fact that search engines displayed an excerpt from Politics1 in an unflattering manner could not be attributed to Politics1.
It’s doubtful that Congress thought about the scenario presented by the unusual facts of this case when it enacted Section 230. But it is clear that the courts have taken that section’s broad language to heart in virtually all the cases that have considered it.
ROOMATES.COM DECISION HEADED FOR REHEARING
One of the few decisions to limit the reach of the immunity provided by the federal Communications Decency Act is headed back for a rehearing. The decision, which found that the immunity did not protect a site called roommates.com, is set to be heard by the entire panel of the United States Court of Appeals for the Ninth Circuit.
The site served as a method for users to find roommates over the Internet. The site asked users to complete a form, prepared by roommates.com. From the responses, users built an online profile. A local housing authority, however, alleged that users submitted discriminatory responses, and the use of that information violated the Fair Housing Act.
Roommates.com argued that it was protected by Section 230 of the federal Communications Decency Act. It contended that it was an interactive computer service and the offending content was provided by third parties, thus triggering the immunity. In almost every other case that has presented similar facts, courts have applied the immunity.
A three judge panel of the Ninth Circuit Appellate Court rejected roommates.com’s argument, because, while it agreed that the site was an interactive computer service, it felt that the site’s involvement in compiling the information made it, at least in part, a content provider. According to the court, roommates.com’s "categorizing, channeling, and limiting the distribution of users' profiles" led to the finding.
The decision to submit the case to the entire panel (e.g. all of the judges in the circuit) does not guarantee that the outcome will change, but it is at least a hopeful sign for many advocates who felt the Ninth Circuit originally took an overly narrow view.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.