March 26, 2019

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Communications Decency Act in Flux on the Hill, Remains Solid in Court

As Congress considers repealing a certain type of statutory immunity for web hosts, a federal appeals court handed Google a victory under the same law. The timing of these events may portend an uncertain future of the Communications Decency Act of 1996 (CDA)—a critical legal protection for internet hosts that has fostered decades of growth for the online community.

The Senate last week passed the House version of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), H.R. 1865. FOSTA would amend CDA Section 230, 47 U.S.C. §230, to remove immunity for web hosts who are sued or prosecuted for promoting or facilitating alleged child sex trafficking or child prostitution arising from abusers' use of their websites to communicate. The bill now awaits the signature of President Donald J. Trump, who has praised FOSTA as "an important step forward in fighting the despicable act of human trafficking" and is expected to sign it.

If it becomes law, FOSTA essentially would override cases involving Backpage.com and Craigslist.com in recent years that have held that CDA Section 230—which provides that internet hosts are not considered "publishers" for third-party content posted on their sites—has immunized the sites for liability in cases of alleged human trafficking. Immediately after FOSTA cleared the Senate, Craigslist removed its Personals section, and Reddit changed its content policy to forbid transactions for certain goods and services including "firearms, ammunition, or explosives" and "paid services involving physical sexual contact."

Over the last 20 years, CDA immunity helped turn the internet into both a robust new forum for public speech and the driving economic force behind an industry that increasingly relies on user-generated content. Congress has moved to water down CDA immunity just as a federal appeals court bolstered the law in its present format. Last month, the U.S. Court of Appeals for the D.C. Circuit held that Google could not be sued for defamation for a statement that a third party published on his blog. Bennett v. Google, LLC, concerned a blog post critical of the plaintiff's company posted by its former contractor. The post, titled "DJ Bennett-think-twice-bad business ethics," leveled accusations of financial misbehavior towards the retailer, concluding: "I urge you to think twice before giving your patronage to DJ Bennett.com . . . . The website is pretty, but the person running the show is quite contemptible." The retailer asked Google to remove the post, but Google declined.

The D.C. Circuit affirmed dismissal of the case, holding that even though Google has a "Blogger Content Policy" regulating certain content on its platform, the company was entitled to CDA immunity because it did not control the content. Importantly, the court dismissed the retailer's argument that, by enforcing its policy, Google allegedly was influencing—and, thus, creating—the content published by its users. Instead, the court held, Google simply administered a forum in which third parties can create and distribute content of their own.

Copyright © by Ballard Spahr LLP

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Christopher Proczko Federal Civil Rights Lawyer Ballard
Attorney

Christopher Proczko is a trusted litigator and skilled advocate who protects his clients' interests, both in and out of the courtroom. He has broad experience litigating in state and federal courts and arbitration around the country, handling simple disagreements and complex disputes with the same level of compassion and professionalism.

Known for his reliability and procedural expertise, Christopher guides his clients through disputes with a common sense approach that both advances their unique legal goals and strives to reach a result that...

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Charles Tobin, Ballard Spahr Law Firm, Entertainment Media Litigation Attorney
Partner

Charles D. Tobin is a litigator, former journalist, and the Co-Practice Leader of Ballard Spahr's Media and Entertainment Law Group. He defends the media in libel and privacy lawsuits in state and federal trial and appellate courts throughout the country. He conducts prepublication content review and advises clients on subpoenas, access and privilege issues, Freedom of Information Act (FOIA) requests, copyright matters, and First Amendment rights.

Mr. Tobin also represents businesses in matters involving unfair competition, disparagement, and false advertising. He helps digital media clients respond to takedown requests, develop terms of use and privacy policies, and fend off subpoenas seeking the identities of anonymous posters. In addition, he advises media clients on the developing laws regulating drone use.

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