THE GOOD SAMARITAN EXEMPTION AND THE CDA Excerpted from Chapter 37 (Defamation and Torts) of E-Commerce and Internet Law: A Legal Treatise With Forms, Second Edition, a 4-volume legal treatise by Ian C. Ballon (Thomson/West Publishing 2015) SANTA CLARA UNIVERSITY LAW PRESENTS “HOT TOPICS IN INTERNET, CLOUD, AND PRIVACY LAW” SANTA CLARA UNIVERSITY LAW SCHOOL APRIL 23, 2015 Ian C. Ballon Greenberg Traurig, LLP Silicon Valley: Los Angeles: 1900 University Avenue, 5th Fl. 1840 Century Park East, Ste. 1900 East Palo Alto, CA 914303 Los Angeles, CA 90067 Direct Dial: (650) 289-7881 Direct Dial: (310) 586-6575 Direct Fax: (650) 462-7881 Direct Fax: (310) 586-0575 [email protected] <www.ianballon.net> Google+, LinkedIn, Twitter, Facebook: IanBallon This paper has been excerpted from E-Commerce and Internet Law: Treatise with Forms 2d Edition (Thomson West 2015 Annual Update), a 4-volume legal treatise by Ian C. Ballon, published by West LegalWorks Publishing, 395 Hudson Street, New York, NY 10014, (212) 337-8443, www.ianballon.net. Ian C. Ballon Silicon Valley 1900 University Avenue Shareholder 5th Floor Internet, Intellectual Property & Technology Litigation East Palo Alto, CA 94303 T 650.289.7881 Admitted: California, District of Columbia and Maryland F 650.462.7881 JD, LLM, CIPP Los Angeles 1840 Century Park East [email protected] Los Angeles, CA 90067 Google+, LinkedIn, Twitter, Facebook: Ian Ballon T 310.586.6575 F 310.586.0575 Ian Ballon represents Internet, technology, and entertainment companies in copyright, intellectual property and Internet litigation, including the defense of privacy and behavioral advertising class action suits. He is also the author of the leading treatise on Internet law, E-Commerce and Internet Law: Treatise with Forms 2d edition, the 4-volume set published by West (www.IanBallon.net). In addition, he is the author of The Complete CAN-SPAM Act Handbook (West 2008) and The Complete State Security Breach Notification Compliance Handbook (West 2009) and serves as Executive Director of Stanford Law School’s Center for E- Commerce. Mr. Ballon, who practices in both Silicon Valley and LA, has brought or defended novel suits involving computer software, user generated content, rights in the cloud and in social media, links, frames, sponsored links, privacy and security, database protection, screen scraping and content aggregation, digital music, the Digital Millennium Copyright Act, rights of privacy and publicity, the enforceability of Internet Terms of Use and Privacy Policies and preemption under the CDA. A list of recent cases may be found at www.GTLaw.com/People/IanCBallon. Mr. Ballon was named the Lawyer of the Year for Information Technology Law in the 2013 edition of Best Lawyers in America. In addition, he was the 2010 recipient of the State Bar of California IP Section’s Vanguard Award and named new media lawyer of the year in 2012 by the Century City Bar Association. He is listed in Legal 500 U.S., The Best Lawyers in America (in the areas of information technology and intellectual property) and Chambers and Partners USA Guide in the areas of privacy and data security and information technology. He also has been recognized by The Daily Journal as one of the Top 75 IP litigators and Top 100 lawyers in California and is consistently listed as a top Northern California and Southern California litigator. Mr. Ballon also holds the CIPP certificate for the International Association of Privacy Professionals (IAPP). Defamation, Torts and the CDA 37.05[1][A] 37.05 The Good Samaritan Exemption (Section 230 of the CDA) 37.05[1] In General 37.05[1][A] Scope, Exclusions and Legislative Purpose Congress, in the Telecommunications Act of 1996,1 ex- pressly overruled the Stratton Oakmont v. Prodigy Services, Inc.2 decision discussed in section 37.04[3]. 47 U.S.C.A. § 230(c)—captioned in the legislation as “Protection for ‘Good Samaritan’ blocking and screening of oensive material” and colloquially referred to by most courts as the CDA3—contains three main provisions set forth in two subparts. Subpart 230(c)(1) overrules the Stratton Oakmont decision, while 5 See Ian C. Ballon, Pinning the Blame in Cyberspace: Towards A Coherent Theory for Imposing Vicarious Copyright, Trademark and Tort Liability for Conduct Occurring Over the Internet, 18 Hastings J. Com- munications & Ent. L. 729, 759 (1996). [Section 37.05[1][A]] 1 47 U.S.C.A. § 230(c). 2 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. (BNA) 1794, 1995 WL 323710 (Nassau County, N.Y. Sup. Ct. May 26, 1995); see generally supra § 37.04[3] (analyzing the case). 3 Section 230 was added to the Telecommunications Act of 1934 by the Telecommunications Act of 1996, in a part of the statute also referred to as the Communications Decency Act (or CDA). The bulk of the CDA, other than section 230, which was codied at 47 U.S.C.A. § 223, addressed criminal sanctions for adult material made accessible to minors and was largely struck down by the U.S. Supreme Court as unconstitutional in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997); see infra § 41.02. Section 230 (which was section 509 of the Telecommunications Act of 1996) is frequently referred to by courts as the Communications Decency Act, or CDA, and occasionally as section 230 of the Telecommunications Act of 1934 (although, of course, there was no Internet in 1934). Pub. 12/2014 37-85 37.05[1][A] E-Commerce and Internet Law subpart 230(c)(2)(A) broadly exempts any action undertaken in good faith to restrict access to or the availability of certain oensive material and subpart 230(c)(2)(B), which was added by a later amendment and exempts any action taken to en- able or make available the technical means to do so (such as ltering tools)—in other words, liability imposed for doing the very things that Prodigy did in the Stratton Oakmont case that had led to liability. In fact, the provisions of the Good Samaritan exemption reach more broadly than the specic objectives that prompted enactment of the law. Subpart 230(c)(1) provides that “[n]o provider or user of an interactive computer service4 shall be treated as the publisher or speaker5 of any information provided by an- The rst edition of this treatise referred to section 230 as the Good Samaritan exemption, reecting the caption used by Congress in the Telecommunications Act of 1996, although technically, as discussed below, only section 230(c)(2) provides a “Good Samaritan” exemption for undertaking action not otherwise required, whereas section 230(c)(1)— which is the provision most commonly litigated—requires no action at all by an interactive computer service provider or user to benet from the im- munity it provides. Referring to section 230 as the “CDA” is likewise an incomplete characterization of section 230 for the same reason. Section 203(c)(2) is the only part that deals with “communications decency”— encouraging Good Samaritan measures to restrict access to certain mate- rial that, while lawful, could be viewed as objectionable—whereas section 230(c)(1) (which creates an exemption from liability for publishing or speaking content originating with a third party) is agnostic to decency. Indeed, the immunity created by section 230(c)(1) would apply equally to decent or indecent content (so long as not obscene or otherwise prohibited by federal criminal law). In this edition, section 230 is referred to by its colloquial name—the CDA—but, to avoid confusion with the criminal provisions of the statute addressed in chapter 41, it is also referred to as the Good Samaritan exemption created by the Telecommunications Act of 1996. 4 An interactive computer service is dened under the Act as “any in- formation service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specically a service or system that provides access to the Internet ....” 47 U.S.C.A. § 230(f)(2). An access software provider is dened as “a provider of software . or enabling tools that do any of the following: (A) lter, screen, allow or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, or translate content.” 47 U.S.C.A. § 230(f)(4). 5 The term publisher or speaker is not dened in the statute. The Fourth Circuit, in the rst case to construe the CDA, interpreted the term to encompass both traditional publisher and distributor liability – reading publisher or speaker broadly to apply to any speech, as well as any 37-86 Defamation, Torts and the CDA 37.05[1][A] other information content provider.”6 Section 230(c)(1) is a self-executing provision intended to overrule Stratton- Oakmont and any other similar case that would hinder the development of Internet commerce by imposing liability stan- dards on intermediaries that would deter them from operat- ing online. By its terms the exemption created by subpart 230(c)(1) applies to any claim—not merely defamation— where liability is sought to be imposed on someone as the publisher or speaker of information provided by someone else, and is self-executing. Courts subsequently have broadly construed subpart 230(c)(1) to preempt virtually all speech-based claims (not merely defamation) brought against interactive computer services or users for content created by others. The issue litigated in subsection 230(c)(1) cases therefore frequently is whether a given defendant should be treated as an informa- tion content provider, in which case the exemption is not available, or merely the publisher or speaker of information provided by another information content provider.