Sometimes a shift in label can signal a shift in policy. A recent shift by the Ninth Circuit away from the use of the term “immunity” when describing the effect of the Communications Decency Act appears to signal such a change.
In earlier cases, the Ninth Circuit frequently referred to the Communications Decency Act as providing “immunity” to internet service providers who publish third-party material. See, e.g., Batzel v Smith, 333 F.3d 1018, 1029 (9th Cir. 2003). Many other circuits followed this characterization. The exception was the Seventh Circuit, which pointed out that the operative language, in 47 U.S.C. § 230(c)(1), did not use the word “immunity”, but merely provided an exclusion from liability by means of a definition — by defining an internet service provider as not a “publisher or speaker” in certain contexts. Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003).
The Seventh Circuit’s approach is not to assume that an internet service provider (ISP) receives blanket immunity for third party content, but to ask whether the suit in question is seeking to treat the ISP as a publisher or speaker. See Chicago Lawyers’ Comm. For Civil Rights under the Law v. Craigslist, Inc., 519 F.3d 666, 670-71 (7th Cir. 2008). If the theory of liability is something other than that the ISP is publishing or speaking the words in question, liability may be imposed. For example, the Seventh Circuit stated that Section 230(c)(1) would not “help people steal music or other material in copyright.” Id. at 670. (Fn1) The Communications Decency Act would not protect such activities as aiding, abetting, inducing or encouraging, or conspiracy with, a third party to place illegal content on a site. Id. at 671-72.
In earlier decisions, the Ninth Circuit has not been adverse to finding against Communications Decency Act immunity for internet service providers. However, it generally did so by finding that the ISP was itself a co-provider of the illegal content. This was the approach in Batzel v. Smith and Fair Housing Council v. Roommates.com. (Fn2)
While the Ninth Circuit probably has not abandoned this approach, in Barnes v. Yahoo, the Ninth Circuit has now also adopted the Seventh Circuit’s “definitional” method for analyzing the scope of the Communications Decency Act. Barnes v. Yahoo, 2009 WL 1232367 * 3-4. This enabled the Ninth Circuit, in Barnes, to find against CDA protection for third-party content, because it was able to characterize the cause of action as something other than holding an ISP liable for speaking or publishing third party content — in this case, breaking a promise regarding third party content.
Looking at typical cases in which the Communications Decency Act has been applied (defamation, fraud, obscenity, assault/harassment), the “definitional” approach to the scope of the CDA would seem to move the debate to determining the kinds of acts by an ISP that rise to the level of encouraging illegal behavior. Given the fact-intensive nature of this determination, the outcome of many cases currently in the works should be interesting.