What the hey is going on Section 230, you guys?

Prof. Eric Goldman
What’s gonna be, Eric?

That’s my version of the less family-friendly-titled, but extremely important, question asked by Eric Goldman in this post, which I excerpt, to wit:

It’s been a tough year for Section 230. In one case after another, I’ve had to “explain away” Section 230 losses:

* Doe #14 v. ModelMayhem. The 9th Circuit embraced a dubious “failure to warn” exception to Section 230.
* E-Ventures v. Google. “Bad faith” allegation overcomes Section 230(c)(2) motion to dismiss.
* Adblade v. RevContent. Allowing a lawsuit to proceed that would potentially hold an ad network liable for third party ads.
* Tanisha v. Chandra. “Conspiracy” allegations overcome Section 230 dismissal.
* Diamond Ranch Academy v. Filer. Summaries of third party content isn’t protected by Section 230.
* Maxfield v. Maxfield. Email-forwarding screenshotted tweets isn’t protected by Section 230.
* Vision Security v. Xcentric. Section 230 denied because Ripoff Report isn’t a “neutral publisher” (sorry, I can never write that term without pointing out it’s an oxymoron).
* J.S. v. Village Voice. Section 230 dismissal denied when plaintiff alleges the defendant “did more than simply maintain neutral policies prohibiting or limiting certain content.”
* General Steel v. Chumley. Section 230 denied if defendants selectively edited content to create a desired meaning (a variation on the oxymornon of neutral publishers).
* Xcentric v. Smith. Allegations that content was created by someone acting like an agent defeats Section 230.
* AdvanFort v. Maritime Executive. How content is bylined might affect Section 230.
* Song Fi v. Google. No Section 230(c)(2) defense for removing video as “objectionable content” if Google’s underlying concern was view count inflation.

(Whew, collecting these defense losses into a single post was exhausting!)

Remind of this, and the time professors have to put stuff like it together, next time I grumble about the academy. Thank you, Eric!  He goes on to discuss Cross v. Facebook, CIV 537384 (Cal. Superior Ct. May 31, 2016) (complaint) in which the following awfulness goes forth:

Today’s case is the latest entry in the “Section 230 WTF?” genre. The case involves a fairly routine case against Facebook for failing to remove negative user content. Facebook has easily won several similar cases, including the Sikhs for Justice (technically a removal case, but the principles are similar), Caraccioli and Klayman cases. The court correctly applies Section 230 to several of the plaintiff’s failure-to-remove claims of breach of contract, negligent misrepresentation and negligent interference with economic advantage). The plaintiff attempts a typical Barnes-style promissory estoppel workaround predicated on Facebook’s user agreement, and the court easily rejects that.

If the court had stopped there, this case would be another routine Section 230 defense win.

But… no. Along comes a right of publicity claim, which throws a spanner into the works, apparently, because it’s good enough to NOT get California-SLAPP’ed away (see, I’m telling you, SLAPP causes as much complication as it solves things!), and … just bad news, apparently.

At least part of the problem is this:

[E]ven if Section 230 doesn’t apply [to right of publicity claims], how can the plaintiff establish a prima facie publicity rights case here? Facebook users posted negative content about the plaintiff and Facebook sells ads around the content. These kinds of “commercial editorial uses” often vex the courts, but I can’t imagine the court would have hesitated to grant the anti-SLAPP motion for a publicity rights claim if the defendant had been an ad-supported newspaper that ran a freelancer article about the plaintiff. To indulge in a law professor reductio ad absurdum, the “logic” of this court suggests that every time a Facebook user references any third party by name (or posts their photo, etc.) without that third party’s consent, that third party has a prima facie publicity rights claim against Facebook. Hello right to be forgotten!

Given that the doomsday outcome is (using Vizzini’s bad grammar) an inconceivable result, I’m 100% sure the case will eventually fail. I look forward to that.

More on the case from Paul Levy (whose blog post I recommend highly–he provides many important details about this case that I glossed over) and Mike Masnick.

Now, before I even had a chance to that, a day later there was THIS screamer:

Yelp Forced To Remove Defamatory Reviews–Hassell v. Bird

[Warning: Brutally ugly opinion and long blog post ahead]

The evisceration of Section 230 continues. Yesterday I explained that the last 12 months have been tough for Section 230 jurisprudence. Today’s opinion is worse than *all* of the cases I discussed yesterday–and you better believe I don’t make that statement lightly! . . .

Eric then goes on to describe a million things Yelp did wrong, or that went wrong — and yet — and I’m just going to excerpt the Section 230 disaster part here, though there’s much more —

Yelp should easily win against any effort to compel it to remove users’ content…right? No. The opinion drips with disgust that Yelp continues to publish content that a court has said is defamatory. In turn, the court makes every possible legal inference against Yelp. You might want some anti-nausea medicine on hand for this next part of the blog post. . .

Here’s the court’s Section 230 jujitsu:

The removal order does not violate section 230 because it does not impose any liability on Yelp….

Assuming, as Yelp has maintained, that Yelp played no role in the creation of that defamatory speech, an order directing Yelp to remove only those reviews that are covered by the injunction does not impose any liability on Yelp….

If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court….

…sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.

WTF??? As a non-party to the lawsuit, the court says Yelp doesn’t face liability from the suit itself, and the court thinks contempt sanctions–including the possibility of monetary damages–against a non-party don’t count as “liability” because it’s “a different type of liability”? And a judicial compulsion to remove content that Yelp chooses to publish doesn’t treat Yelp “as a publisher or distributor”? Wow.

What about the contrary Section 230 precedent I cited above? The court says:

The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site….Neither party cites any authority that applies section 230 to restrict a court from directing an Internet service provider to comply with a judgment which enjoins the originator of defamatory statements posted on the service provider’s Web site

So the court is flat-out wrong.

Pacific coast from the Surfliner
A nice place to visit, but you really don’t want to litigate there


Oh man, oh man, oh man, this is bad!  What’s going to be?

Can This Opinion Be Fixed?

Based on the way the court structured this opinion, fixing it will not be easy. Yelp can appeal to the California Supreme Court, but they have discretion whether or not to hear the case. Depublishing the opinion would be a smaller but still fairly effective step, but the odds of this panel depublishing its opinion seem remote.

Congressional fixes to this ruling are virtually impossible. It probably would require a substantive change to Section 230, and if Congress ever reopens Section 230 for amendment, that will almost certainly end badly.

Read both posts, ideally with your eyes closed.

So okay, what is going on?  Are pendulums swinging back now in the “bad” direction, or are there just judges out who never quite got it?

I just don’t know. I don’t know!  I don’t know!

Have you seen what it’s like out there?  You don’t even know what bathroom to use.  Nothing makes any sense in this world any more.

And now this.

Ron Coleman

I write this blog.