As the news story you can find here explains, in January of 2013,
more than two dozen women
filed suit against the administrators of the website Texxan.com - and
GoDaddy, the site's host - after nude or semi-nude photos of the women appeared
on the website without their permission.
As the story also notes, GoDaddy then filed a motion “seeking to be dismissed from the lawsuit”.
As the opinion this post examines explains, the plaintiffs
filed the underlying action on behalf
of a putative class of women who allege that other defendants, not a party to
this appeal, who owned two `revenge porn’ websites, published sexually explicit
photographs of plaintiffs without their permission or consent. GoDaddy, as an
interactive computer service provider, hosted the revenge porn websites. . . .
[P]laintiffs admit that GoDaddy did not
create the defamatory and offensive material at issue. Plaintiffs argue that
because GoDaddy knew of the content, failed to remove it, and then profited
from the activity on the websites, GoDaddy is jointly responsible for
plaintiffs' damages. In their petition, plaintiffs allege that these revenge
websites `engage[d] in the publication of obscenity and child pornography’ in
violation of Texas Penal Code. Plaintiffs further allege that GoDaddy hosted
the websites despite having knowledge that the developers were engaged in
illegal activities.
Plaintiffs assert causes of action
against GoDaddy `for intentional infliction of emotional distress, for its
severe, extreme, intentional, and unlawful misconduct in violation of the Texas
Penal [Code], and for its gross negligence in violation of Texas Penal Code[.]’
GoDaddy.com, LLC v.
Toups, 2014 WL 1389776 (Court of Appeals of Texas – Beaumont 2014). You can, if you are interested, find the
original Complaint the plaintiffs filed to initiate the lawsuit here.
to Rule 91a of the Texas Rules ofCivil Procedure. In its memorandum of law filed in support of its motion to
dismiss, GoDaddy argued that it is immune from civil liability for plaintiffs'
claims under section 230 of the [Communications Decency Act] because
GoDaddy is a provider of interactive computer services and cannot be treated as
a publisher of content created by a third party.
Plaintiffs responded that the websites
were `”revenge porn” websites’ and by their nature not protected by the 1st
Amendment; and, therefore, the website owners were not entitled to immunity
under the CDA. Plaintiffs further argued that the CDA does not preempt their
state law tort claims. After a hearing, the trial court denied GoDaddy's motion
to dismiss.
GoDaddy.com, LLC v.
Toups, supra.
GoDaddy then filed a motion under Rule 168 of the TexasRules of Civil Procedure, in which it asked the trial judge to certify the
denial of its motion to dismiss to the Court of Appeals. GoDaddy.com,
LLC v. Toups, supra. By doing that, GoDaddy was hoping to have the appellate court either reverse the trial judge’s
ruling (which would have ended its role in the suit) or remand the matter to
the trial judge to re-determine whether the motion should have been
granted. Litigants usually have to wait
until a case has been fully resolved before they can file an appeal, but Rule
168 allows interlocutory appeals.
The Court of Appeals began its analysis of the denial of the
motion to dismiss by noting that “[w]e review the trial court's ruling on a
question of law de novo.” GoDaddy.com, LLC v. Toups, supra. The principle at issue was, again, whether
GoDaddy was immune from suit by the plaintiffs, and the parties made
essentially the same arguments they made before the trial judge. GoDaddy.com, LLC v. Toups, supra.
The court began its analysis of the immunity issue by noting
that
[t]o support its argument that it is
entitled to immunity, GoDaddy relies on the following language in section
230:
`No 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. Code § 230(c)(1).
The statute defines an `”interactive computer service”’ as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet[.]’ Id. § 230(f)(2). The statute defines an ‘”information content provider”’ as `any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.’ Id. § 230(f)(3).
GoDaddy.com, LLC v.
Toups, supra. And, just to
reiterate, GoDaddy argued that it is a
provider of an interactive
computer service as defined by the CDA, that the content at issue was provided
by another information content provider, and plaintiffs' allegations improperly
seek to treat GoDaddy as a publisher of the content posted on the websites by
third parties.
Plaintiffs argue that GoDaddy is not
entitled to immunity because § 230 does not preempt state law intentional
torts, and because the immunity provision in § 230 only applies if the
website content qualifies for protection under the 1st Amendment. Plaintiffs
argue that the CDA `does not protect conduct that is illegal or in violation of
a federal or state penal statute.’
GoDaddy.com, LLC v.
Toups, supra.
The Court of Appeals began its analysis of these arguments
with the plaintiff’s claim that § 230 does not preempt state law intentional torts:
[U]nder the facts of this case, we need
not decide whether plaintiffs' may bring their intentional infliction of
emotional distress claim independently of other recognized theories. All of
plaintiffs' claims against GoDaddy stem from GoDaddy's publication of the
contested content, its failure to remove the content, or its alleged violation
of the Texas Penal Code for the same conduct.
Allowing plaintiffs' to assert any
cause of action against GoDaddy for publishing content created by a third
party, or for refusing to remove content created by a third party would be
squarely inconsistent with § 230. See 47U.S. Code § 230(e)(3) (`[N]o liability may be imposed under any State or
local law that is inconsistent with this section’). See
also Zeran v. American Online, Inc., 129 F.3d 327 (U.S. Court of Appeals for the 4th Circuit 1997) (concluding that the distributor
theory of liability was `merely a subset’ of publisher liability, the court
held that AOL was immune from suit for claims that it was liable as a
distributer when AOL was given notice of defamatory content posted by a third
party and unreasonably delayed removing it from the website).
GoDaddy.com, LLC v.
Toups, supra. In a footnote, the
court pointed out that “allowing plaintiffs to bring a private cause of action
against GoDaddy for its alleged violations of the Texas Penal Code would be
contrary to legislative intent.” GoDaddy.com, LLC v. Toups, supra (citing
47 U.S. Code § 230(a)).
The court therefore held that
[b]ecause GoDaddy acted only as an
interactive computer service provider and was not an information content
provider with regard to the material published on the websites, plaintiffs
cannot maintain claims against GoDaddy that treat it as a publisher of that
material. Moreover, plaintiffs cannot circumvent the statute by couching their
claims as state law intentional torts.
GoDaddy.com, LLC v.
Toups, supra.
The Court of Appeals then took up the plaintiffs’ argument
that GoDaddy
cannot receive immunity under §
230 for publishing content that is unlawful or unprotected by the 1st Amendment. Plaintiffs contend the website's content does not qualify for 1st
Amendment protection as legal pornography, and the CDA `was never intended to
bless criminal activities occurring on websites.’ Plaintiffs fail to cite to
any authority that supports their position that only constitutionally protected
content gives rise to immunity under § 230.
GoDaddy.com, LLC v.
Toups, supra.
The court pointed out, however, that
[t]here is no provision in the CDA that
limits its application to suits involving constitutionally protected
material. See 47 U.S. Code § 230. Reading such an exception
into the statute would undermine its purpose.
`The
amount of information communicated via interactive computer services is ...
staggering. The specter of tort liability in an area of such prolific speech
would have an obvious chilling effect. It would be impossible for service
providers to screen each of their millions of postings for possible problems.
Faced with potential liability for each message republished by their services,
interactive computer service providers might choose to severely restrict the
number and type of messages posted. Congress considered the weight of the
speech interests implicated and chose to immunize service providers to avoid
any such restrictive effect.’
GoDaddy.com, LLC v.
Toups, supra (quoting Zeran v.
American Online, Inc., supra.)
The Court of Appeals also noted that in 47 U.S. Code § 230(b), Congress articulated the "specific policies" behind the adoption of the CDA:
(1) to promote the continued development of the
Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free
market that presently exists for the Internet and other interactive computer
services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies
which maximize user control over what information is received by individuals,
families, and schools who use the Internet and other interactive computer
services;
(4) to remove disincentives for the development and
utilization of blocking and filtering technologies that empower parents to
restrict their children's access to objectionable or inappropriate online
material; and
(5) to ensure vigorous enforcement of Federal
criminal laws to deter and punish trafficking in obscenity, stalking, and harassment
by means of computer.’
47 U.S. Code § 230(b). A construction of the CDA that yields a broad application of its provisions, without regard to the nature of the content at issue, is supported by its stated policies. See id.
GoDaddy.com, LLC v.
Toups, supra.
The Court of Appeals also pointed out that in Doe v. Bates, 2006 WL 3813758 (U.S.District Court for the Eastern District of Texas 2006), the federal judge
explained that
`Section 230 does not, as
[p]laintiffs propose, provide that an intentional violation of criminal law
should be an exception to the immunity from civil liability given to internet
service providers. Such a finding would effectively abrogate the immunity where
a plaintiff simply alleged intentional conduct. Instead, “lawsuits seeking to
hold a service provider liable for its exercise of a publisher's traditional
editorial functions-such as deciding whether to publish, withdraw, postpone or
alter content-are barred.”’
GoDaddy.com, LLC v.
Toups, supra. In the Bates case, the judge also found that “Congress
decided not to allow private litigants to bring civil claims based on their own
beliefs that a service provider's actions violated the criminal laws”, and
therefore “granted Yahoo's motion to
dismiss plaintiffs' claims and dismissed the case with prejudice.” Doe v.
Bates, supra (quoted in GoDaddy.com,
LLC v. Toups, supra).
The Texas Court of Appeals therefore found that the
plaintiffs’ “contention that GoDaddy is not entitled to immunity from
plaintiffs' state law claims because of the alleged obscene or unlawful nature
of the material posted on the websites is without merit.” GoDaddy.com,
LLC v. Toups, supra.
It therefore held
that because the plaintiffs
seek to hold GoDaddy liable as the
publisher of the contested website content; therefore, plaintiffs' claims are
barred under 47 U.S. Code § 230. Even taking plaintiffs' allegations as
true, plaintiffs' have failed to state a viable claim against GoDaddy.
GoDaddy.com, LLC v.
Toups, supra. So it reversed
the trial judge’s order denying GoDaddy’s motion to dismiss and remanded “the
cause to the trial court for entry of judgment in favor of GoDaddy.com, LLC and
for further proceedings consistent with this opinion.” GoDaddy.com,
LLC v. Toups, supra.
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