Over the last twenty years, an increasing number of claims have been brought against Internet websites that publish third party content, slowly changing the prevailing notion that such content is never subject to liability.[1] This upsurge in lawsuits comes at no surprise — greater accessibility to such online material, coupled with the proliferation of increasingly powerful, interactive online publishers, has increased exposure to an assortment of legal matters and raised the stakes in online publishing.[2]
Many of the lawsuits brought against online publishers claim violation of §230 of the Communications Decency Act of 1996 (CDA), which provides formidable immunity to online publishers.[3] When originally passed, §230 was intended to shield website owners from liability for illegal content on their websites by third parties in order to promote development of the early Internet, vigorous information sharing, and free speech.[4] The legislative rational behind the immunity provision was that while websites share some attributes to print works such as magazines, which are held liable for third-party content, they are more akin to telecom companies that operate as passive outlets of third-party communication, which are not liable.[5] However, due to the evolving complexity of the Internet, this distinction between an active or passive conduit of third party information has become much harder to clearly define.
The vast majority of courts interpreting §230 have done so broadly, holding the immunity provision as an almost absolute bar on lawsuits against website owners for publishing questionable third-party content.[6] Recently, however, this seemingly carte blanche immunity for online publishers has been under closer scrutiny. In the intricate Internet landscape we live in today, websites are becoming not only the publisher of information, but also have significant power and control over the material that third parties post.
Within the past ten years, several judges have dissented with this broad interpretation of section 230, claiming this granting of broad immunity to online publishers has lead to websites carrying defamatory, illegal, or otherwise harmful postings without any recourse for victims.[7] We are no longer in the days of the early Internet where we need the CDA in order to promote vigorous sharing of information and protection of free speech.[8] Nor can we say that websites of this nature were part of the purpose of the CDA, which was to promote sharing of vital, helpful communications over the Internet for the greater good of society.[9] The potential for abuse simply outweighs the benefits imposed by a broad interpretation of the CDA’s immunity provision.[10]
The latest of such lawsuits involves a putative class action filed July 7, 2016 in California federal court.[11] The case involves a minor user of Snapchat Inc.’s photo messaging app.[12] Plaintff alleges that media published within the “Discover” section of Snapchat’s app reveals to minors sexually inappropriate and offensive material in violation of the CDA.[13] The “Discover” section allows other media outlets, such as Buzzfeed and Cosmopolitan, to publish on the Snapchat app main page, and thus Snapchat has not only a large amount of control over which third-party media outlets can post, but also a great deal of influence over the type of content they ultimately post.[14]
Snapchat has approximately 150 million users and twenty three percent are between the ages of thirteen and seventeen.[15] Snapchat does ask for the users birthday during registration since access is restricted to people older than thirteen.[16] Nonetheless, there is no distinction in the videos available to minors and adults, and no language in the terms of service that notifies minor users of explicit content.[17] Snapchat’s own online community guidelines prohibit users from publicly displaying sexually explicit content.[18] The content Snapchat offers on Discover consistently breaches its own rules.
An intriguing layer about the lawsuit is that the plaintiff’s claim is founded on the infrequently cited CDA Section 230(d), a subsection that still remains to be litigated.[19] Basically, section 230(d) says that online interactive services such as Snapchat, when entering into an agreement with users, must alert such users of the availability of parental control safeguards.[20] If victorious, this may necessitate changes to the terms of service of almost all interactive online publishers. As the Internet further develops and online communication increases, more courts seem less eager to hand out immunity without close scrutiny. It looks probable that as more content goes digital, the tendency to construe the scope of immunity a bit more tightly will remain. It will be interesting to see how Snapchat will respond.
[1] Samuel J. Morley, How Broad Is Web Publisher Immunity Under §230 of the Communications Decency Act of 1996?, Fla. B. J., Feb. 2010, at 8.
[2] Id.
[3] 47 U.S.C.A. § 230 (West 1998).
[4] Id.
[5] Morley, supra note 1.
[6] See Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).
[7] See Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1177 (9th Cir. 2008) (Dissent).
[8] Id.
[9] Id. at 1178.
[10] Id.
[11] Class Action Alleges Snapchat Exposes Minors To Adult Content, Lexis Legal News (July 8, 2016, 1:58 PM), http://www.lexislegalnews.com/articles/9659/class-action-alleges-snapchat-exposes-minors-to-adult-content.
[12] Id.
[13] Lexis Legal News, supra note 10.
[14] Id.
[15] Shayna Posses, Snapchat Exposes Minors To Explicit Content, Suit Says, Law 360 (July 7, 2016, 8:43 PM), http://www.law360.com/articles/815156/snapchat-exposes-minors-to-explicit-content-suit-says.
[16] Id.
[17] Id.
[18] Id.
[19] Jeffery Neuburger, Liability under CDA Section 230? Recent Lawsuit Tries to Flip the Script against Social Media Service, Proskauer (Sep. 8, 2016), http://newmedialaw.proskauer.com/2016/09/08/liability-under-cda-section-230-recent-lawsuit-tries-to-flip-the-script-against-social-media-service/#more-1387.
[20] Id.