Concerns that freedom of online speech would be chilled if Internet Service Providers were liable for allegedly defamatory remarks made by posters to their sites led Congress to pass the Communications Decency Act (the “CDA”). The CDA shields companies serving as intermediaries for other parties’ potentially injurious speech from tort liability arising from users’ comments. Section 230 of the CDA provides 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.” Although the CDA is interpreted broadly in light of Congress’ intent in passing the statute, an interactive computer service provider remains liable for its own speech.
To benefit from CDA immunity, (1) the defendant must be a provider or user of an interactive computer service; (2) the plaintiff’s claim must be based on information provided by another information content provider; and (3) the claim must treat the defendant as the publisher or speaker of the allegedly harmful speech. In Small Justice LLC v. Xcentric Ventures LLC, a federal court in Massachusetts found that Ripoff Report should not lose its CDA immunity even if it was found to have copyright ownership of the allegedly defamatory content, and even if, as the plaintiff alleged, it “intentionally caused…two defamatory per se publications to be prominently and frequently featured on Google…and other search engines.”
Ripoff Report is website operated by Xcentric Ventures LLC on which registered users post complaints about companies and individuals. In January 2012, Christian Dupont posted an allegedly defamatory report about Richard Goren’s conduct as an attorney and certain behavior outside of professional activities. In February, Dupont posted a second report containing similar allegations. In March, Xcentric got a registered copyright for Ripoff Reports from January to March.
In July 2013, Goren and Small Justice, a company asserting a copyright interest in the reports at issue, sued Xcentric in Massachusetts federal court, stating several causes of action including libel and intentional interference with prospective contractual relations. Xcentric moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), arguing that Section 230 gave it immunity from these tort claims. Plaintiffs responded that Section 230 immunity was not available because Xcentric (1) asserted ownership of the copyrights in the reports, and (2) intentionally submitted the posts to Google and other search engines, thereby adopting the content of the posts as its own.
The issue here was whether the allegedly defamatory content was provided by “another information content provider” or by Xcentric itself. The CDA defines an information content provider as “any person or entity responsible in whole or in part for the creation or development of information provided through the Internet or another interactive computer service.” For Section 230 immunity to apply, the allegedly defamatory postings must have been provided by an information content provider other than Xcentric because Xcentric would be liable for its own speech under the CDA.
Plaintiffs argued that Xcentric’s asserted copyright ownership in the Reports transformed it from an intermediary to the actual provider of the disputed content. According to plaintiffs, Xcentric adopted the Reports as its own speech and subjected itself to liability by holding itself out as the copyright owner. The court rejected this argument. Plaintiffs did not cite any authority holding that an Internet Service Provider adopts content by virtue of copyright ownership, and courts that have addressed the issue have held that an Internet Service Provider is not a content provider unless it specifically encourages the development of the offensive content. Xcentric’s acquisition of an exclusive license to the content was not sufficient involvement in the development of the content to nullify Section 230 immunity.
Plaintiffs then argued that Xcentric surrendered its immunity by instructing search engines such as Google to make copies of the two reports under its claimed exclusive ownership of the reports and authorizing the search engines to display the copies. Plaintiffs asserted that by doing this, Xcentric adopted the content of the reports as its own and caused them to be republished. The court rejected this argument as well. Although the CDA allows Interactive Service Providers to be held liable for content they create themselves, the court found here that the alleged conduct did not rise to the level of “creation or development” of information that would render Xcentric an information content provider under the CDA. Plaintiffs did not argue that Xcentric augmented or changed the reports’ content in any way, and they conceded that Xcentric’s actions were designed to maximize the number of times the reports appeared among Google’s search results. Merely endeavoring to increase the prominence of its site among search results does not make Xcentric an information content provider under the CDA.
The court held that Section 230 shielded Xcentric from liability based on publication of the allegedly injurious Ripoff Report posts, so it dismissed plaintiffs’ claims for libel and tortious interference.