IsAnybodyDown Part ???: Applicability of Section 230 of the CDA

With news outlets starting to pick up the IsAnybodyDown story (an overview is here) — among them Ars Technica and the Daily Dot – one misconception should be headed off at the pass: the site’s creators are not likely to be shielded from liability by Section 230 of the Communications Decency Act.

[Before I begin: though I've taken the California bar exam, I'm not a licensed attorney quite yet.  I get results on Friday at 6PM. Pray hard to the FSM, please.  That said,  I'll probably get some of this wrong.  If you're foolhardy enough to be running an involuntary porn site, you might be dumb enough to listen to me -- don't.  This is merely an opinion and people far smarter than I will likely take objection to parts of it.]

Section 230 of the Communications Decency Act (CDA)

§230 of the CDA is what greases the free-wheeling internet in the legal realm.  In a nutshell, it exempts website operators from civil liability for certain types of content provided by its users or another site.  That means Yelp isn’t liable every time a disgruntled customer makes something up about a business, Google doesn’t have to fear frivolous lawsuits because it links to the Anarchist Cookbook, and 4Chan is unlikely to get hit with a judgment as a result of whatever its feral malcontents are flinging on /b/.

That’s a manifestly good thing.  Without it, websites would have to screen all content posted by their users, and sites like Facebook would come to a screeching, unprofitable halt.  More unprofitable, I mean.  Nor are the injured left without a remedy: they can always go after the person responsible for the posting.

Given how many frivolous lawsuits are batted back by a §230 defense, it’s difficult to fault the authors of the ArsTechnica and the Daily Dot articles for raising it as a possible defense — it is.  But §230 is not limitless, and IsAnybodyDown is unlikely to succeed in raising it.

First, §230 does not provide a defense to Federal (and perhaps state) intellectual property claims.  To the extent that the men and women pictured on the site own the copyright to their photos (e.g., they took the picture themselves or can acquire the right from whoever took it), a copyright claim will survive a §230 defense.  Marc Randazza has indicated that copyright claims are a possibility, should he find a client willing to let him take the case pro bono.  Whether a Fair Use defense to the copyright claim can be raised is another issue, and I don’t believe it can.  More on this later, perhaps.

Second, to the extent that there are tort claims against IsAnybodyDown (e.g., public disclosure of private facts, defamation, intentional infliction of emotional distress, etc.), IsAnybodyDown will have an uphill battle asserting a §230 defense.  Generally, the more control a website exercises over the content it provides, the less likely it is to be shielded from liability.

IsAnybodyDown isn’t simply republishing the material users submit.  As I’ve documented extensively, they’re going out and getting much of it themselves by deceiving unsuspecting Craigslist posters.  Additionally, rather than creating an automated system to publish user-submitted content, IsAnybodyDown asks viewers to email in their content, then selects which third-party content to post.  Whether solicitation and selection itself strips a website of §230 immunity is unclear, though many courts (PDF) have declined to find that selection of content revokes immunity..  The site also offers rewards for submitted content, and paying users for content may strip a site of immunity, assuming any of those rewards were successful.  Furthermore, they’re creating their own screenshots of Facebook profiles, adding in their own commentary, and doing their own investigative work.

Similar questions were raised by Evan Brown of InternetCases.com regarding the application of §230 to IsAnybodyDown’s predecessor, IsAnyoneUp:

The site clearly isn’t protected by §230 from copyright claims over the photos it has used without consent.  It’s less clear whether they’ll be shielded from tort claims, particularly where the content in question was derived by deceiving posters on Craigslist — photos  clearly not intended to be published on a porn site.