Chart of CDA 230 cases

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NB: this chart was originally designed for use with StopBadware

Case review

Case 230(c)? Notes/Reasoning Applicability
Jane Doe v. Myspace, 2007 U.S. Dist. LEXIS 12269 (February 13, 2007). Yes
  • Plaintiffs filed suit against MySpace and its parent company, News Corp, alleging negligence, gross negligence, fraud, and negligent misrepresentation based on MySpace’s failure to implement safety measures to protect minors like Doe from sexual assault by adult MySpace users.
  • Holding: CDA provides ∆ with immunity from tort liability even if MySpace was aware of the risk of sexual assault and took no precautions.
    • Ct declines to extend duty of premises owners to "virtual premises."
    • Ct concluded that (gross) negligence claims also fail under common law because MySpace had no duty to protect Doe from sexual assault, regardless of the foreseeability of sexual assault.
    • Ct granted ∆'s motion to dismiss on all counts.
 Useful distinction between real & virtual premises. Clarified that 230 immunity extends not just to defamation but to negligence cases as well, closely following Zeran reasoning.
Universal Communication Systems, Inc. v. Lycos, Inc., 2007 U.S. App. LEXIS 3946 (1st Cir. Feb. 23, 2007). Yes
  • First time the 1st Circuit has addressed this issue.
  • At issue: messages on RagingBull.com, a financial message board.
  • Raging Bull's TOS.
  • Rationale for granting 230 immunity: "In particular: (1) web site operators, such as Lycos, are "provider[s] . . . of an interactive computer service"; (2) message board postings do not cease to be "information provided by another information content provider" merely because the "construct and operation" of the web site might have some influence on the content of the postings; and (3) immunity extends beyond publisher liability in defamation law to cover any claim that would treat Lycos "as the publisher."" Id. at *14.
    • "It is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider's own speech." Id. at *17.
    • Court rejects argument that Lycos actively developed content: "UCS's theory is that [the ability for a single individual to create multiple profiles and the fact that Raging Bull links to sites providing objective financial data] make it possible for individuals to spread misinformation more credibly, by doing so under multiple screen names and in a context that is associated with objective content." Id. *19.
    • Court shoots down Grokster-based theory that Lycos has provided "culpable assistance" to subscribers wishing to disseminate misinformation.
      • "Even assuming arguendo that active inducement could negate Section 230 immunity, it is clear that UCS has not alleged any acts by Lycos that come even close to constituting the "clear expression or other affirmative steps taken to foster" unlawful activity that would be necessary to find active inducement." Id. at *21.
 How much influence does the "construct and operation" of our site have on the content of the postings? We're clearly not taking steps to "active[ly] induce" unlawful activity, but we are seeking to "develop" content through our volunteer community, under a broad reading of "develop." We should try to determine if there's a clear definition of "development" in any CDA case (the dissent to denial of rehearing in Batzel offers one not terribly convincing definition), and how exactly it is distinguished from "creation."
Hollis v. Joseph (in re DontDateHimGirl.com) ?? A shorter piece of text.
Chi. Lawyers' Comm. for Civ. Rights Under the Law, Inc. v. Craigslist, Inc., 461 F. Supp. 2d 681 (N.D. Ill. 2006) Yes
  • Defendant was a "provider of an interactive computer service" because it operated a website that multiple users had accessed to create allegedly discriminatory housing notices. These notices, in turn, were "information" that originated, not from defendant, but from "another information content provider," namely the users of defendant's website.
  • Note reasoning: "Given the above-described overbreadth, internal inconsistency, and problematic applications, the Court respectfully declines to follow Zeran's lead."
 Notable attempt to approach §230 afresh, through statutory interpretation and with minimal reliance on Zeran line of precedent. A case worth thinking through, even if not directly relevant to SBW's concerns.
Parker v. Google, 422 F. Supp. 2d 492 (E.D. Pa. 2006) Yes
  • Plaintiff brings various tort suits against Google for defamatory posts and infringing use of copyrighted material on Google-run message board system Usenet. Court finds that Google is an interactive service provider, not an information content provider, so Google is immune from state tort suits under CDA 230. Google only archived, cached, and provided access to content created by third parties.
 CDA 230 immunizes site owners who only archive, cache, or provide access to content from third parties (not very useful for SBW)
Dimeo v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006) Yes
  • Plaintiff Dimeo alleges that Max selected for publication on his website "defamatory statements aimed at Plaintiff."
  • "If "development of information" carried the liberal definition that DiMeo suggests, then § 230 would deter the very behavior that Congress sought to encourage. In other words, § 230(c)(1) would not protect services that edited or removed offensive material. Yet, as noted earlier, one of Congress's goals in enacting § 230 was to promote this kind of self-regulation. Thus, "development of information" must mean "something more substantial than merely editing portions of [content] and selecting material for publication." Batzel, 333 F.3d at 1031; see also Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (holding that § 230(c)(1) bars "'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.") (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). Because DiMeo alleges that Max did no more than select and edit posts, we cannot consider him to be the "provider" of the "content" that DiMeo finds to be offensive."
Int'l Padi, Inc. v. Diverlink, 2005 U.S. App. LEXIS 14234 (9th Cir. 2005) Yes
  • Plaintiff International PADI ("PADI"), an organization that certifies scuba divers, sued defendant Diverlink, a diving website, in state court for defamation.
 Not very applicable to our case
Optinrealbig.com, LLC v. Ironport Sys., 323 F. Supp. 2d 1037 (D. Cal. 2004) Yes
  • Optinrealbig sues Spamcop, a website that generates reports about Spam and forwards these reports to ISPs. Spamcop receives complaints from registered users who are receiving spam, then uses the e-mail metadata to identify the ISP that hosts the services used by the spammer. Spamcop encourages users to "be careful" about reporting spam, providing guidance on what should and should not be reported.
  • Applying the tests of Carafano and MCW, the court holds that Spamcop was not an information content provider because it did not alter, shape, or edit the content, nor did it even make minor edits, as did the defendant in Batzel.") Id. at 1047.
    • "With respect to content, unlike the defendants in MCW, Inc. v. badbusinessbureau.com, SpamCop does not organize the reports with headings or other matter. Unlike the defendants in Carafano, SpamCop has not created questionnaires or other forms that registered users use in shaping the content of the reports."
    • "It may be aggressive in its mailings, but SpamCop has not altered the content of the messages and thus, under the CDA it is immune from liability."
 We should certainly figure out where we fall in terms of altering/shaping/editing content between SpamCop and MCW. I am inclined to think that we do not need to take nearly as much of a hands-off approach as SpamCop. I think the comparisons to MCW and Carafano are mainly included so as to underscore the extremity of SpamCop's approach. Being as hands-off as SpamCop is arguably a sufficient but not necessary condition to stay within the §230 safe harbor. However, I won't deny that some of the dicta in this case is worrisome. [NB] SG: Also note that this case relies heavily on Batzel as the outer limit to CDA 230 immunity. This is favorable reliance/dicta because Batzel's facts arguably involve greater site owner interactivity. Cremers arguably shaped the form of the content (by choosing what to put in the messages and selecting an email that came to his personal address. In addition, Cremers certainly edited or otherwise altered the message.
Green v. Am. Online (AOL), 318 F.3d 465 (3rd Cir. 2003) Yes First time the 3rd Circuit discusses the scope of 230 immunity
  • "Green appears to argue that AOL waived its immunity under section 230 by the terms of its membership contract with him and because AOL's Community Guidelines outline standards for online speech and conduct and contain promises that AOL would protect Green from other subscribers. However, as the District Court determined, the Member Agreement between the parties tracks the provisions of section 230 and provides that AOL "does not assume any responsibility" for content provided by third parties. Though AOL reserved the right to remove messages deemed not in compliance with the Community Guidelines, it expressly disclaimed liability for failure or delay in removing such messages."
 Closely track statutory language in drafting TOS
Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) Yes
  • Background: Smith believed that Batzel was in possession of artwork looted during WWII. Smith e-mails Cremers, the operator of a listserv with his concerns, and Cremers forwarded the message to a listserv that included law enforcement officials and museum curators. Cremers exercised some editorial control over what to include in his listserv e-malilings, and he edited some of the wording in Smith's original message. Smith e-mailed Cremers at an e-mail address which was not the one dedicated to submissions for the listserv.
  • 9th Circuit holds that Cremers is not liable: "The pertinent question therefore becomes whether Smith was the sole content provider of his e-mail, or whether Cremers can also be considered to have "creat[ed]" or "develop[ed]" Smith's e-mail message forwarded to the listserv." Id. at 1031.
  • "Obviously, Cremers did not create Smith's e-mail. Smith composed the e-mail entirely on his own. Nor do Cremers's minor alterations of Smith's e-mail prior to its posting or his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv) rise to the level of "development." As we have seen, a central purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted. Also, the exclusion of "publisher" liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message. The "development of information" therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication. Because Cremers did no more than select and make minor alterations to Smith's e-mail, Cremers cannot be considered the content provider of Smith's e-mail for purposes of § 230." Id. (emphasis added).
  • Dissent
    • "The partial dissent does not register any disagreement with this interpretation of the definition of "information content provider" or with the observation that immunity for "publisher[s]" indicates a recognition that the immunity will extend to the selection of material supplied by others. It nonetheless simultaneously maintains that 1) a defendant who takes an active role in selecting information for publication is not immune; and 2) interactive computer service users and providers who screen the material submitted and remove offensive content are immune. See post at 8465 and n. 5. These two positions simply cannot logically coexist." Id. at 1032.
  • Dissent from denial of rehearing en banc (Batzel v. Smith, 351 F.3d 904):
    • Follows up on earlier dissent's distinction between screening (OK) and selection (bad).
    • "It is one thing to say, as all of the cited cases have said, that Congress wanted to preserve the ability of a website operator to edit something posted by another, thereby diminishing harm to the public when defamation or harmful material are excised. It is quite another, and diametrically opposed to what Congress had in mind, to hold, as the panel majority mistakenly held, that Congress intended to immunize someone like Cremers who first places on the Internet a patently defamatory missive that the sender had not even aimed for Internet publication."
 One thing to take away from the dissents is that we're probably on safe ground if we just edit or excise defamatory information posted by ICPs, since this appears to be within Congress's intent.
Doe v. GTE Corp., 347 F3d 655 (7th Cir. 2003) Yes
  • Easterbrook: was CDA intended to protect Good Samaritan screening or encourage sites to do nothing?
    • Easterbrook partially criticizes the non-interference presumption in Batzel: "[P]art of the "Communications Decency Act"--bears the title "Protection for 'Good Samaritan' blocking and screening of offensive material", hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services. Why should a law designed to eliminate ISPs' liability to the creators of offensive material end up defeating claims by the victims of tortious or criminal conduct?”"
    • see also the three part test from the Meyers article - no portion relates to the intent of the service provider to remove harmful content.
 This case supports the idea that we may be justified in editing/censoring defamatory material on public interest and Congressional intent grounds.
Ben Ezra, Weinstein, and Company, Inc. v. AOL, Inc., 206 F.3d 980 (10th Cir. 2000) Yes
  • AOL operated a "Quotes and Portfolios" service to provide stock information, and ComStock and Townsend were third party content providers to the service.
  • Though AOL 1) communicated with the Comstock and Townsend to inform them of errors in data and 2) periodically removed incorrect data, these two activities do not make AOL an information content provider.
  • "By deleting the allegedly inaccurate stock quotation information, [AOL] was simply engaging in the editorial functions Congress sought to protect." 206 F.3d at 986.
 Removal of information that is incorrect is protected.
Lunney v. Prodigy Servs., 94 N.Y.2d 242, 250 (N.Y. 1999) N/A
  • "The Appellate Division aptly concluded that even if Prodigy "exercised the power to exclude certain vulgarities from the text of certain [bulletin board] messages," this would not alter its passive character in "the millions of other messages in whose transmission it did not participate" (250 AD2d, at 237), nor would this, in our opinion, compel it to guarantee the content of those myriad messages." (emphasis added).
  • Note: this case was not decided under CDA 230, but the lower court decision (affirmed by the Appellate Division) states that the holding accords with the policy of 230: Lunney v. Prodigy Servs. Co., 250 A.D.2d 230 (N.Y. App. Div. 1998). This is a case where Prodigy reserved the right to exercise control; even though Prodigy didn't actually exercise any control, the court indicates that some exercise of control would not necessarily vitiate a 230 defense.
 A shorter piece of text.
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) Yes A longer piece of text. Lorem ipsum... A shorter piece of text.
Zeran v. AOL, Inc., 129 F.3d 327 (4th Cir. 1997) Yes
  • no duty to take down offensive material--immune if you had notice of defamatory material
  • dicta indicating that there should be a right to screen for offensive material because this is in line with Congress' intent (but the facts of this case were limited to a provider that delayed taking down defamatory material and printed a retraction, not to a case where a provider was sued for screening)
    • an "important purpose of [the CDA] was to encourage [Internet] service providers to self-regulate the dissemination of offensive material over their services." 129 F.3d at 331
 A shorter piece of text.


Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006) No
  • An online dating service is not immune under § 230 from claims that it created false profiles and sent profiles of actual former subscribers whose subscriptions had expired.
  • π: "Yahoo! deliberately and intentionally originates, creates, and perpetuates false and/or non-existent profiles on its site to trick people into joining the service and renewing their memberships."
    • Court finds that Yahoo has indeed manufactured false profiles; for this reason, Yahoo is an ICP.
 I think the key takeaway from this case is that what Yahoo did was pretty blatantly bad. It's clear that Yahoo itself is the source of the "underlying misinformation" (as Carafano calls it)--Yahoo didn't just select or screen the information; it actively created it. As long as we don't do this, we should be in the clear.
Carafano v. Metrosplash.com, 207 F. Supp. 2d 1055 (C.D.Cal. 2002) No but see below
  • ∆ provided multiple-choice questions and a list of essay questions that shaped the form of the content.
    • This rendered the defendant "responsible...in part for the creation or development of information provided through the Internet...." Id. at 1066-1067
    • "The critical issue is whether . . . [the interactive computer service] acts as an information content provider with respect to the information" that was posted. Id. at 1125.
    • "Matchmaker contributes to the content of the profiles by asking specific questions with multiple choice answers and specific essay questions. It is responsible, in part, "for the creation or development of information" contained in the profiles. Indeed, it appears that a member cannot post any other additional information even if he/she desires. By contrast, a bulletin board and the other types of on-line forums designated by Defendants merely provide the forums for the speech and do not contribute to the creation or development of information provided by the users of these services. This Court's determination would be different if Matchmaker simply acts as a conduit of the information, but it does not."
 I don't think much weight should be placed on the finding that ∆ is an ICP here. The court's reasoning is neither deep nor coherent, perhaps because the case is decided for ∆ on summary judgment on other grounds.
Update on Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) Yes
  • Victim appealed from summary judgment (see above); grant of summary judgment affirmed because internet matchmaker found to be immune from suit under § 230(c)(1), even though it asks 62 detailed questions and provides a menu of pre-prepared responses, and "despite the serious and utterly deplorable consequences that occurred."
    • The internet matchmaker was not an information content provider because none of its matchmaking profiles had any content until a user actively created it. The internet matchmaker simply published a profile that was created by a third-party, and the fact that some of the content was formulated in response to the internet matchmaker's questionnaire did not alter the fact that the internet matchmaker did not play a significant role in creating, developing or transforming the relevant information. (!!)
    • "The fact that some of the content was formulated in response to Matchmaker's questionnaire does not alter this conclusion. Doubtless, the questionnaire facilitated the expression of information by individual users. However, the selection of the content was left exclusively to the user. The actual profile "information" consisted of the particular options chosen and the additional essay answers provided. Matchmaker was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph. Matchmaker cannot be considered an "information content provider" under the statute because no profile has any content until a user actively creates it. As such, Matchmaker's role is similar to that of the customer rating system at issue in Gentry v. eBay [see below]" Id. at 1124.
        • In addition, particularly objectionable content "bore [no] more than a tenuous relationship to the actual questions asked."
      • "Similarly, the fact that Matchmaker classifies user characteristics into discrete categories and collects responses to specific essay questions does not transform Matchmaker into a "developer" of the "underlying misinformation." We also note that, as with eBay, Matchmaker's decision to structure the information provided by users allows the company to offer additional features, such as "matching" profiles with similar characteristics or highly structured searches based on combinations of multiple choice questions. Without standardized, easily encoded answers, Matchmaker might not be able to offer these services and certainly not to the same degree. Arguably, this promotes the expressed Congressional policy "to promote the continued development of the Internet and other interactive computer services." Id. at 1124-25.
        • Despite fact that Matchmaker contributes much more structure and content than eBay, court found this to be "distinction of degree rather than of kind," thus Matchmaker not responsible for "underlying misinformation." Id. at 1125.
  • Also note Matchmaker's timely response: "[Carafano's agent] contacted Matchmaker and demanded that the profile be removed immediately. The Matchmaker employee indicated that she could not remove the profile immediately because Perry herself had not posted it, but the company blocked the profile from public view on Monday morning, November 8. At 4:00 AM the following morning, Match-maker deleted the profile."
 This strongly indicates that we may be able to use web forms, after all, to solicit certain forms of content from community members. If a defamation claim arises, we appear to be safe so long as we are not the ones creating or developing the underlying misinformation.
Gentry v. eBay, Inc., 121 Cal.Rptr.2d 703 (Cal. Ct. App. 2002) Yes
  • eBay created a highly structured Feedback Forum, which categorized each response as a "Positive Feedback," a "Negative Feedback," or a "Neutral Feedback." In addition, eBay provided a color coded star symbol next to the user name of a seller who had achieved certain levels of "Positive Feedback" and offered a separate "Power Sellers" endorsement based on sales volume and Positive Feedback ratings.
  • π alleged that eBay "was an information content provider ... responsible for the creation of information, or development of information, for the online auction it provided through the Internet."
    • But court concluded that § 230 barred the claims:
      • "Appellants' negligence claim is based on the assertion that the information is false or misleading because it has been manipulated by the individual defendants or other co-conspiring parties. Based on these allegations, enforcing appellants' negligence claim would place liability on eBay for simply compiling false and/or misleading content created by the individual defendants and other coconspirators. We do not see such activities transforming eBay into an information content provider with respect to the representations targeted by appellants as it did not create or develop the underlying misinformation." Id. at 717-18.
 More support for our immunity so long as we're not developers of "underlying misinformation."
MCW Inc. v. Badbusinessbureau.com, L.L.C., 2004 U.S. Dist. LEXIS 6678 (D. Tex. 2004) No
  • Test: "In order for the defendants to enjoy immunity under the CDA, [plaintiffs] must establish that: (1) [defendants] are providers or users of an interactive computer service, (2) neither [defendant] act[ed] as an information content provider with respect to the information that was posted, and (3) the asserted claims treat the defendants as a publisher or speaker of information originating from a third-party." Id. at *27.
  • Key facts: "[D]efendants themselves create, develop, and post original, defamatory information concerning [victim] ... defendants personally write and create numerous disparaging and defamatory messages about [victim] in the form of report titles and various headings ... [and defendants] created and posted other disparaging editorial messages about [victim]." Id. at *32. None of this is disputed by either defendant.
  • Court finds that specific encouragement is determinative (eliminating 230 safeharbor).
    • But "the right to edit a posting and the act of editing do not prohibit an interactive computer service from falling under the CDA's protective umbrella of immunity." Id at *24.
 These facts are distinguishable from SBW's situation, because of SBW's distinctness from the users who post to its community--which is unlike the close connection between the defaming user and the website in this case (defaming user was owner/operator of website). Again, SBW is not the source of the underlying defamation.
Autoadmit.com's failures ??
  • Registration Nick: note that there are no terms of service; all you need to register is a valid e-mail address.
  • Background info. (from Washington Post)
  • Distinguishing SBW from autoadmit: Are we encouraging users to visit SBW for purposes of 'defamation'?
    • Nick: After reviewing the autoadmit site and the news stories, I think that we can avoid encouraging defamation through a clear TOS. Our TOS should make clear that this site is dedicated to identifying badware, not bad actors, so 1) we reserve the right to terminate a user's posting privileges if s/he posts defamatory material and 2) we reserve the right to remove any posts that do not relate to the problem of badware. In addition, if there were a complaint about a defamatory post, we should IMMEDIATELY respond/remove (as I understand it, the YLS students did complain, but to no avail). Finally, we could require registrants to answer questions about our TOS so that they know that the wiki isn't an open forum for speech of any sort, but a limited forum to discuss the issue of badware.
 A shorter piece of text.
Casename Yes/no? A longer piece of text. Lorem ipsum... A shorter piece of text.
Casename Yes/no? A longer piece of text. Lorem ipsum... A shorter piece of text.
Casename Yes/no? A longer piece of text. Lorem ipsum... A shorter piece of text.
  • Other cases, possibly worth looking at:
    • Green v. Am. Online (AOL), 318 F.3d 465
    • Delfino v. Agilent Technologies, Inc., 145 Cal. App. 4th 790
    • Barrett v. Rosenthal, 40 Cal. 4th 33
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