Disorder in the court

By Paul Festa
Staff Writer, CNET News.com
March 6, 2003, 4:00AM PT

A controversial case before a federal appeals court could significantly restrict legal protections that have long absolved Internet companies from responsibility for their customers' actions.

The issue stems from a libel lawsuit filed by actress Christianne Carafano over postings that appeared on the dating site Matchmaker.com. Her suit was filed against the company that operates the site, Metrosplash, which was acquired by Lycos in June 2000 for about $44 million in cash.

Carafano, whose roles under the stage name Chase Masterson include Leeta on the TV show "Star Trek: Deep Space Nine," sued Metrosplash after someone posted a personals ad that mixed accurate information, including her name and address, with alleged falsehoods.

In March 2002, the U.S. District Court for the Central District of California rejected Carafano's libel claim, citing traditional defamation law that makes malice difficult for public figures to prove. In his decision, however, Judge Dickran Tevrizian also said Metrosplash was not shielded by Section 230 of the landmark Communications Decency Act, which has long protected online companies from being held responsible for material that others post on their sites or send through their servers and networks.

"The language of the statute itself requires this court to determine whether Matchmaker, as a provider of an interactive computer service, is an information content provider, i.e., is partly responsible for the creation or development of the information being provided," Tevrizian wrote in the decision. "This court concludes that Matchmaker is such an information content provider. Consequently, the immunity of Section 230 does not extend to it as a matter of law."

The ruling is believed to be the first significant challenge to the core protections of the Communications Decency Act, which were drafted seven years ago at the behest of Internet service providers such as America Online. The statute, which granted broad immunity for ISPs and other companies doing business online, states that "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."

Congress initially created Section 230 as what experts describe as a political quid pro quo with online companies. The CDA criminalized "indecent" material, potentially making ISPs and sites liable for what their users published through them, and Section 230 was intended to create a "safe harbor" for the companies to win their support of the law.

"The law causes the lawsuits to be dismissed at the very earliest stages of litigation," said Eric Goldman, an assistant professor at Marquette University Law School in Milwaukee. "Which means the plaintiffs don't even get a chance to make their claim in front of the court. That's tremendously important from a business standpoint and a legal standpoint, because it means that the judges can't be swayed by fancy arguments, and it absolutely keeps all of these cases out of the hands of juries."

While early applications of the law hinged on libel complaints, in recent years they have come to include spreading false information, selling bootleg recordings, and--perhaps ironically, considering the CDA's genesis as a child-protection statute--distributing child pornography.

The portion of the Carafano ruling that deals with Section 230 has been sent to the 9th U.S. Circuit Court of Appeals, though a hearing has yet to be scheduled. Should the court's reasoning hold up in this appeal, Web sites fear they could face a new wave of suits targeted at a newly identified Achilles' heel of Section 230. As a result, eBay and AOL this year signed a friend-of-the-court brief urging the appellate judges to overturn the lower court's reasoning in the Carafano case. (The companies did not challenge the decision to clear Metrosplash of wrongdoing.)

"If Section 230 did not apply to this sort of third-party content, then CNET, Amazon, eBay and others would likely have to abandon providing such valuable services to avoid facing potential liability whenever a user maligns or otherwise misdescribes a particular product, seller, or buyer," the brief stated.

CNET Networks, publisher of News.com, did not participate in the preparation of the brief but agreed with its arguments. "The District Court ruling is contrary to the policy goal of the Communications Decency Act, which was to facilitate robust Internet communication, and is inconsistent with prior cases that have applied the act," said Sharon Le Duy, senior vice president and general counsel for CNET.

A series of court decisions based on the law have held that ISPs and other online companies are not liable for all manner of customer activities. Actions as disparate as the sale of fake sports memorabilia and the distribution of hostile computer code have fallen under the category of "information" under the statute, and companies ranging from eBay to domain name registrars have been designated as "interactive computer services."

But in the Carafano case, the U.S. District Court departed from previous decisions. Because Metrosplash led users through 62 multiple-choice queries, plus essay questions targeted at different groups, Tevrizian reasoned that the company participated in the creation of content.

Attorney Gregory Aldisert, who represented Carafano in the case last year, said the judge's ruling was proper under the CDA's language.

"The statute provides that if you participate in the creation of content, you lose your immunity. It's a pretty straightforward analysis," said Aldisert, an attorney with Greenberg Glusker, the Los Angeles member of the World Law Group. "With a multiple-choice questionnaire, with the answers already provided, and with the essay questions, they were participating in part in creating content, and so did not enjoy immunity."

Aldisert disagreed that companies such as Amazon and eBay would be vulnerable if the lower-court decision is upheld. "Their questions weren't just 'What do you think?'" he said of the Matchmaker.com queries. "The closer thing to Metrosplash is if eBay were to ask, 'What do you think of this book?' and then to give choices saying, 'This book sucks. It's the worst book I've every read in my life.' Once you start framing answers for people, and not just asking questions, that's where I think you cross the line."

The practical effect of that definition could reach far beyond online dating services to any number of sites that offer their visitors multiple-choice questionnaires or elicit visitors' opinions and product reviews. These include e-tailers such as Amazon.com, review sites such as Epinions and online publications such as CNET.

Amazon has tools that could compromise its Section 230 immunity under Carafano's reasoning, said Patrick Carome, an attorney with Wilmer Cutler and Pickering who signed the friend-of-the-court brief and represented Internet companies in seminal Section 230 cases including Zeran v. AOL.

"There are tools out there for the ratings of products, the ratings of books and the like where users are asked to answer multiple-choice questions to express their views," Carome said. If the Carafano reasoning is upheld, he said, "those sorts of tools may be called into doubt."

Jay Monahan, associate general counsel for litigation and intellectual property for eBay, which has prevailed against plaintiffs in two other Section 230 defenses, said he did not believe any of his company's tools would fall under the Metrosplash category. But he agreed with Carome that sites would have to re-evaluate their information-gathering methods should the decision survive.

"The Carafano ruling represents a clear departure from a line of cases which correctly interpreted the scope of the CDA," Monahan said.

Marquette's Goldman called the lower-court decision an "aberration" that flies in the face of many other rulings that explicitly rejected similar reasoning.

"This case reinforces the incorrect assumption that there's some way around this statute, and there isn't," he said. "I don't think there's anything there that can be squared with a larger body of cases holding the alternative result. People have been working this angle for five years now, and they're not getting anywhere, except for this one aberrational case."

		Read the ruling Carafano v. Metrosplash.com Court determined Metrosplash played a role in developing false information.

Legal experts and corporate attorneys alike argue that, while the courts have mapped an expanding universe of customer behavior and of the types of businesses entitled to immunity under the statute, they have not expanded it further than Congress' original intent.

"The basic principle is that when there is a harm caused by a third-party user of an online service, the online service is not going to be liable. Instead, the law will bear down on the actual wrongdoer," Carome said. "That makes a huge amount of sense because of the huge volume of these services. To hold the online service liable would be an enormous burden and would in fact cause services not to provide open forums to provide what Congress wanted, which is robust free speech."

One legal scholar not directly involved in the Carafano litigation concurred, saying that the CDA has succeeded in achieving its goals until this case.

"Congress' purpose in passing this statute was to promote Internet businesses and to remove a potential source of liability and business uncertainty," said Jennifer Granick, director of Stanford University's Center for Internet and Society. "Section 230 was supposed to encourage companies to set up online in an area where people didn't know what the legal liabilities might be because everything was so new, and it had a real influence on encouraging innovation on the Internet. And that's what Congress wanted."