CDA Provides Safe Harbor for Internet Service Providers, Leaves Businesses Up the Creek

Under the Communications Decency Act (CDA) – a 1996 law aimed at regulating obscene and indecent internet content – an internet service provider cannot be treated as the “publisher or speaker of any information” provided by a third party content provider, even when the service provider makes the information available to the public. Increasingly, courts are interpreting this “safe harbor” provision as establishing broad federal immunity for service providers against claims relating to third party content.

On October 10, the US District Court for the Northern District of California ruled that the safe harbor provision of the CDA, 47 U.S.C. § 230(c), protected Hewlett-Packard from liability under state law for claims stemming from a risqué smartphone application (app) available in the HP App Catalogue. The plaintiff in the case, Ernest Evans, was a musician who went by the stage name Chubby Checker, which also happened to be the name of the app. Evans brought claims against HP for unauthorized use of name or likeness under Pennsylvania and California law, but the Court barred the state law claims, citing the CDA and the importance of maintaining a vibrant online marketplace. Notably, the Court rejected arguments that HP could be held liable under the CDA as a “content provider” because it has editorial control of the HP App Catalogue and earns commission from sale of the app.

Similarly, the Sixth Circuit Court of Appeals noted recently that the CDA would protect the online review website TripAdvisor from liability for users’ potentially defamatory statements. TripAdvisor allows users to post comments about businesses on its site. In Seaton v. TripAdvisor LLC, a hotel owner sued TripAdvisor after his hotel was ranked number one on TripAdvisor’s “2011 Dirtiest Hotels” list. The list included a quotation from a TripAdvisor user about the hotel’s dirty bathrooms. Although the hotel owner did not sue TripAdvisor specifically for users’ defamatory statements, the Sixth Circuit said in a footnote that the website “cannot be held liable for its users’ statements” under the CDA.

Businesses that track their online reputations should be aware of continuing developments with the CDA and the constraints that it places on potential causes of action against internet service providers. Arent Fox is monitoring the case law for further developments. Please contact the listed attorneys with questions.