What If Service Providers Play a Role in Editing and Selecting Content

Even if the service providers are actively involved in processes such as selecting content for publication, courts have held that they are still granted the § 230 protection unless they create the content because that selecting and editing work does not make the service provider a content provider. Besides, courts have noted that punishing service providers for their editorial roles discourages them from self-regulation, a function the § 230 intends to encourage.

In Anthony DiMeo, III v. Tucker Max, for example, the district court of the Eastern District of Pennsylvania noted that if service providers’ selecting and editing work is to be punished, the § 230 fails to encourage service providers’ self-regulation, one of the Congress’s goals to enact the § 230.

Another interesting case is Whitney Information Network, Inc. v. Xcentric Ventures LLC, Badbusinessbureau.org and Ed Magedson. Defendant Xcentric operates a website known as The Rip-Off Report that provides a forum where consumers can post complaints about companies and business dealings with which they are dissatisfied. Users must select a topic and category in order to post a complaint. The topics include “outrageous & popular rip-off” and “unusual-rip off”, as well as more generic topics such as “automotive”, “dining”, and “travel.” The ROR website contains several reports that refer to Whitney Information Network in a derogatory manner. WIN argues that Defendants are “responsible, in whole or in part, for the creation or development of the allegedly defamatory postings because Defendants created the ‘con artists’, ‘corrupt companies,’ and ‘false TV advertisements’ categories that were used on some of the postings regarding WIN.” As a result, the defendant should not be granted CDA immunity.

“However, the Court finds that the mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the ROR website is not sufficient to treat Defendants as information content providers of the reports about WIN that contain the ‘con artists’, ‘corrupt companies’, and ‘false TV advertisements’ categories. See Global Royalties, Ltd. v. Xcentric Ventures, LLC, No. 07- 956-PHX-FJM, 2007 WL 2949002, at * 3 (D. Ariz. Oct. 10, 2007); see also Carafano, 339 F.3d at 1124; Prickett v. InfoUSA, Inc., No. 4:05-CV-10, 2006 WL 887431, at *5 (E.D. Tex. March 30, 2006). Rather, the authors of the postings made the decision to select these categories to describe WIN. See Carafano, 339 F.3d at 1124.25 Moreover, Xcentric did not solely provide posters with a selection of categories that were negative and/or defamatory in nature.”

In Christianne Carafano v. Metrosplash.com, Inc., et al., a district court rejected defendants’ argument that plaintiff’s claims were barred by application of Section 230 of the Communications Decency Act because the information in question was posted in response to a questionnaire prepared by defendants. The plaintiff is an actress. Defendant Matchmaker.com is an Internet based “dating” service that allows members to search a database containing the profiles of other members. Those profiles are prepared by members as responses to multiple choice and essay questions drafted by defendants. A third party created a profile under the name of the plaintiff and posted derogatory content about her.

The district court ruled that “This Court agrees that Matchmaker qualifies as an information content provider.  The users of the Matchmaker website do not simply post whatever information they desire.  Rather, a profile for each user is created from the questions asked by Matchmaker and the answers provided.  These questions consist of multiple choice questions and a series of essay questions tailored for each Matchmaker community.  Thus, Matchmaker is an entity that is responsible … in part, for the creation or development of information provided through the Internet …” (See more of the court opinion)

United States Court of Appeals for the Ninth Circuit, however, noted that “Matchmaker cannot be considered an ‘information content provider’ under the statute because no profile has any content until a user actively creates it” (See more of the court opinion). The Court noted that even if the defendants can be considered as an information content provider, “the statute would still bar Carafano’s claims unless Matchmaker created or developed the particular information at issue.”

In Children of America, Inc. v. Edward Magedson, et al., “Defendants cannot as a matter of law face liability for their provision of access to the comments created by users. Nor can they face liability for their actions in promoting the site, organizing its content, making the contents more accessible on search engines or soliciting contributions of content. ”

However, the Court ruled that defendants might be liable under defamation claims for the headlines authored by the defendants, which themselves purportedly contained defamatory content.

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