GoDaddy.com, Revenge Porn and Immunity

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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.

As noted above, GoDaddy responded by filing a motion to dismiss the suit pursuant 

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:

`It is the policy of the United States—

(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.