Marc S. Reisler is a Partner in our New York office .
Via Section 230, the Communications Decency Act (CDA) provides broad immunity for service providers, hosts and website operators for claims stemming from their publication of information created by third parties. Specifically, this provision of the CDA shields "interactive computer services" from claims that seek to treat the service provider as the "speaker" of the content provided by the third party, thereby imputing liability to it. In general, courts have adhered to that expansive view in construing Section 230, even in cases when the operator knowingly published defamatory content.
The U.S. District Court for the Northern District of California hewed to this logic and construed Section 230 to afford immunity to Hewlett-Packard (HP) in the recent case Evans v. Hewlett-Packard Co., No. 3:13-cv-02477-WHA (N.D. Cal. Oct. 10, 2013). The case began as a result of HP offering a software application (app) in its App Catalogue called "The Chubby Checker." The "Chubby Checker" purported to measure the size of a certain area of a man's body. As it happens, Chubby Checker is also the name of a prominent entertainer. He didn't appreciate the association of his registered name with what the court termed a "vulgar pun," and so he sued HP, alleging federal and common law trademark infringement, among other claims.
After a partial dismissal of the original complaint, the plaintiff submitted an amended complaint which included some allegations suggesting HP was a service provider, and others that insinuated it was a content provider. As alluded to above, Section 230 immunity applies only to service providers. However, as the court in the instant case noted, the most relevant precedent in the Ninth Circuit states that if a website provider such as HP displays content "created entirely by third parties, then it is only a service provider with respect to that content." Given this holding, the court in Evans stated that HP could not be a content provider for two reasons. First, all of the allegations by the plaintiff that HP "created, designed, developed and [sic] transformed" parts of advertisement content in the context of the app were merely conclusory and not backed up by the factual record. Second, the other allegations levied by the plaintiff fell "under the editorial conduct within the duties of service providers." As such, they were insufficient to buttress any of their alleged causes of action since whenever a "third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process."
As we saw in this blog recently, there are specific instances when a court will reject a claim of Section 230 immunity from a service provider, though they are the exception and not the rule. Absent some sort of ratification or content creation by the service provider, it should generally expect to employ this immunity as a defense in any prospective litigation.
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