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In contrast with 2003 and 2004, when courts questioned or rejected claims of immunity under 47 U.S.C. 230 of the Communications Decency Act of 1996, in 2005, courts universally immunized interactive computer-service providers from liability for information that originates with third parties. Two pending cases, however, will greatly shape this area of the law in future years. Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. 230(c)(1). Section 230 was passed in response to Stratton Oakmont Inc. v. Prodigy Services Co., 1995 N.Y. Misc. Lexis 229 (Nassau Co., N.Y., Sup. Ct. 1995), where a New York state court held that an Internet service provider (ISP) could be held liable for defamation as a publisher if it retained control over the postings on its site, even though it did not create or assist in the creation of the allegedly defamatory statements. In the years immediately following its passage, �230 immunity was principally � and successfully � invoked by ISPs that were sued for content posted by other individuals, usually on Internet bulletin boards or in “chat rooms.” See, e.g., Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997); Doe v. America Online Inc., 783 So. 2d 1010 (Fla. 2001). Since those initial cases, however, �230 has been successfully raised as a defense by a variety of defendants, in a variety of contexts. In 2003, however, the Seventh Circuit U.S. Court of Appeals in Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003), suggested that � 230 might apply only to liability that treats an ISP as a “publisher” and might permit states to regulate ISPs in their capacities as intermediaries. Id. at 660. The GTE court ultimately decided the case on other grounds so that its comments are merely dicta. More recently, in Barrett v. Rosenthal, 114 Cal. App. 4th 1379 (Calif. Ct. App. 2004), a California appellate court held that an individual who redistributed an e-mail written by another individual was not entitled to immunity under � 230. The e-mail in question accused a doctor (Stephen J. Barrett) of “stalking women.” Barrett advised Ilena Rosenthal that the message was defamatory, asked her to remove it and threatened suit if it was not withdrawn. Rosenthal refused to remove the message, reposted it and posted additional messages describing Barrett’s threats. The California court held that because Rosenthal was on notice as to the alleged falsity of the letter (because of the settlement demand), she was liable as a “distributor” of allegedly defamatory material, and that � 230 did not immunize such conduct. Id. at 1394. In April 2004, the California Supreme Court granted review of the Barrett case. Although briefing was complete at the end of 2004, a decision has not yet been issued. In 2005, courts deciding � 230 cases uniformly held that the broad immunity granted by the statute foreclosed attempts to impose liability on individuals or entities that did not create the information at issue. Thus, for example, in International PADI Inc. v. Diverlink, 2005 U.S. App. Lexis 14234, at 6 (9th Cir. July 13, 2005), the court affirmed dismissal of a defamation suit under California’s anti-SLAPP statute, holding that the article written by a third party and published by the Web site did not expose the Web site to liability. Similarly, in Associated Bank-Corp. v. Earthlink Inc., 2005 U.S. Dist. Lexis 20184, at 10 (W.D. Wis. Sept. 13, 2005), the plaintiff alleged that the defendant incorrectly identified the plaintiff’s Web site as a potentially dangerous and fraudulent site. Despite this admitted error, the court granted summary judgment to the defendant based on � 230, holding that, because the information at issue was created by a third-party vendor, the interactive computer service was entitled to immunity. In a similar vein, the court in Whitney Information Network Inc. v. Xcentric Ventures LLC, 2005 U.S. Dist. Lexis 24920, at 9 (M.D. Fla. July 14, 2005), held that defendants were entitled to dismissal of a complaint because they did not write the messages at issue. The same reasoning was applied in three other cases: Faegre & Benson LLP v. Purdy, 367 F. Supp. 2d 1238 (D. Minn. 2005), where the court held that a defendant was not liable for comments posted on his Web site when it was not proven that he was the author of the messages; Austin v. Crystaltech Web Hosting, 2005 Ariz. App. Lexis 168 (Ariz. Ct. App. Dec. 22, 2005), where the court affirmed that the defendant Web site was immune from liability for a posting by a third party; and Landry-Belle v. Various Inc., 2005 U.S. Dist. Lexis 38471 (W.D. La. Dec. 27, 2005), where the court recommended that the Web site operator be held immune for content posted by a third party. In Barnes v. Yahoo! Inc., 2005 U.S. Dist. Lexis 28061, at 11 (D. Ore. Nov. 8, 2005), the plaintiff, Cecelia L. Barnes, alleged that a former boyfriend impersonated her by creating several unauthorized online profiles, which included nude pictures of Barnes along with her contact information. She alleged that a Yahoo employee promised her that Yahoo would intervene and stop the unauthorized use of the profiles, but that Yahoo failed to follow through on its alleged promise. The court dismissed her suit, holding that her claim was foreclosed by � 230 because it attempted to hold Yahoo liable as a publisher. Similarly, in Donato v. Moldow, 865 A.2d 711 (N.J. 2005), the court held that the operator of an electronic community bulletin board was entitled to � 230 immunity even though the plaintiffs alleged that he was selectively choosing what messages to post and which to delete: “These activities . . . are nothing more than the exercise of a publisher’s traditional editorial functions, namely, whether to publish, withdraw, postpone or alter content provided by others.” Id. at 725. On the other hand, in Cisneros v. Sanchez, 2005 U.S. Dist. Lexis 37724 (S.D. Texas Dec. 7, 2005), the court held that a libel claim was improperly removed to federal court on the basis of the CDA. The court held that because the plaintiff alleged the defendant was the author of the allegedly defamatory messages, the defendant could not rely upon the CDA. Similarly, in Hy Cite Corp. v. badbusinessbureau.com LLC, 2005 U.S. Dist. Lexis 38082, at 14-15 (D. Ariz. Dec. 27, 2005), the court rejected the defendant’s motion based on the CDA because the plaintiff alleged that the defendant created the content at issue. Two pending cases will greatly shape this area of the law in future years. The first is the California Supreme Court’s resolution of Barrett. If the court holds that Congress did not intend � 230 to immunize “distributors,” that decision has a great potential to chill speech on the Internet in future years: “Each notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information.” Zeran, 129 F.3d at 333. Given Congress’ intent that ISPs should not be forced to make on-the-spot decisions that could expose them to potential liability, there is more than sufficient justification for the Barrett court to follow every other court that has considered the issue, and hold that � 230 extends to both publisher and distributor liability. The second pending case could have significant ramifications for bloggers. In Software Development & Investment of Nevada d/ b/ a TrafficPower.Com v. Wall, No. 05-1109 (D. Nev. filed Sept. 12, 2005), the plaintiff sued a blogger, Aaron Wall, alleging that unnamed defendants had “misappropriated and disseminated through Web sites Plaintiff’s confidential information.” On Oct. 6, 2005, the blogger moved for summary judgment. In his motion papers, he argued that � 230 immunized him because “any trade secrets that may have been posted on the Blog were posted by third parties; Wall did not post any trade secrets belonging to Plaintiff on the Blog.” On Feb. 13, the court held that it lacked jurisdiction, but granted the plaintiff leave to replead facts establishing jurisdiction. As a result, the case may not be over. The Wall case may not be the ideal blogger case to test the scope of � 230 immunity because � 230 expressly excludes intellectual property from the scope of its protection: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” 47 U.S.C. 230(e)(2). Consequently, at least three courts have refused to apply � 230 immunity to an interactive computer service alleged to have participated in violations of intellectual property rights. Perfect 10 Inc. v. CCBill LLC, 340 F. Supp. 2d 1077 (C.D. Calif. 2004); Gucci America Inc. v. Hall & Assoc., 135 F. Supp. 2d 409 (S.D.N.Y. 2001); Ford Motor Co. v. GreatDomains.com Inc., 2001 U.S. Dist. Lexis 24780 (E.D. Mich. Sept. 25, 2001). In 2005, courts continued to apply � 230 broadly, immunizing individuals or entities from liability for content that they did not create. If the California Supreme Court upholds the intermediate court’s ruling in Barrett, however, its imposition of “notice” liability will have far-reaching consequences. Similarly, the reach and application of � 230 to bloggers will shape this area of the law in future years. Leslie Paul Machado is a partner in the Washington office of Nixon Peabody who has previously written extensively on developments in �230 of the Communications Decency Act of 1996 and First Amendment law. This article was originally published in The National Law Journal, a Recorder affiliate.

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