Paying for Nude Celebrities: Testing the Outer Limits of Roommates.com, Accusearch, and Section 230 Immunity

• Citation: Vol. 11 No. 2
• Publication year: 2015

Washington Journal of Law, Technology and Arts Volume 11, Issue 2 Summer 2015

Paying FOR Nude Celebrities: Testing THE Outer Limits OF Roommates.com, Accusearch, AND Section 230 Immunity

Christian Kaiser© Christian Kaiser

ABSTRACT

The Internet is a powerful tool that promotes commerce, free thought, and free speech. It is these exact values that Congress sought to solidify when it passed Section 230 of the Communications Decency Act. The Internet also has a dark side, which is filled with obscenities, pornography, and illegal activity. In order to protect positive values and activities on the Internet, Congress decided to incentivize websites to police the content posted by their users. This was done by providing broad immunity from lawsuits based on content posted by third parties. But this immunity is not absolute. In the Fair Housing Council of San Fernando Valley v. Roommates.com the court held that a website is a developer of the allegedly illegal content, and thus not immune, when it materially contributes to the alleged illegality of such content. Under Roommates.com, a website "materially contributes" if it forces its users to provide the allegedly illegal content. The F.T.C. v. Accusearch decision represents a different approach to the material contribution standard created in Roommates.com, but nevertheless affirms the broad immunity created by Section 230. Finally, the progeny cases of Roommates.com and Accusearch provide examples and reasons why Section 230 is so broad. This Article applies the above-mentioned cases to a hypothetical where a website receives payment to promote stolen celebrity photos on its website. This application concludes that the facetious website is not liable under the current law, regardless of the fact that its actions are morally suspect.

TABLE OF CONTENTS

I. Introduction ........................................................................... 127

II. Section 230 of the Communications Decency Act Creates Broad Immunity For Websites .............................................. 129

III. Section 230 Immunity Is Broad, But Not Absolute. . ............ 130

IV. F.T.C. v. Accusearch Inc., While Lacking In Analysis, Affirms the Broad Immunity and Limited Exception To Section 230 Expounded In Roommates.com. .................................... 133

V. The Progeny of Roommates.com and Accusearch Demonstrate the Breadth of Section 230 Immunity. .................................. 135

A. A Website Is Still Immune Even If It Receives a Takedown Notice for the Illegal Content. . ...................................... 135

B. The Fact That the Business Is Motivated By Profit Is Irrelevant To Whether Section 230 Immunity Applies. 137

C. Section 230 Immunity Still Applies When an Owner of a Website Knows the Third-Party Content Is Legally Questionable Absent a Takedown Notice. .................... 137

VI. Analyzing the Hypothetical Under Roommates.com, Accusearch, and the Case Law In Section IV, Makes It Clear Squawker Will Not Be Liable ............................................... 138

Conclusion ................................................................................... 138

Practice Pointers ........................................................................... 139

I. INTRODUCTION

The Internet is a powerful tool that enables businesses to reach customers all over the world and empowers people to speak out against their government. However, it would be a mistake to view the Internet through rose-colored glasses, for there are many dark, disturbing, and illegal activities it supports. This Article analyzes the immunity created under Section 230 of the Communications Decency Act.(fn1) Two recent and contentious cases(fn2) are used to analyze a hypothetical constructed in light of recent changes in social media and an event concerning popular culture.(fn3) This section introduces the hypothetical, sections II, III and IV discuss Section 230, the Roommates.com and Accusearch decisions, section V discusses the progeny cases, and section VI applies all the cases to the facts of the hypothetical.

The hypothetical is as follows: A social networking website called "Squawker" has recently decided to accept payment from users in exchange for promoting their "squawks"(fn4) to all other users of the website. An anonymous user ("Anon") of a popular imageboard site(fn5) called "3Chan" pays Squawker to promote his squawks. Anon explains that he will be squawking pictures that he found on the Internet. These pictures consist of nude celebrities and were stolen from various iCloud accounts owned by said celebrities.(fn6) While Anon did not steal the photos himself, he is obsessed with getting upvotes(fn7) and is convinced that these squawks will raise his notoriety in the Squawker community. Squawker believes that these photos will be incredibly popular and will draw greater amounts of traffic to its webpage, increasing its revenues from selling advertising.

Squawker's promotion of Anon's squawks goes viral. Millions of Squawker users see the photos on their accounts and re-squawk them amongst their friends. This also draws millions of new users to Squawker's webpage, increasing its revenues substantially. These photos are eventually squawked to the celebrity victims' official Squawker accounts. Squawker received multiple takedown orders from the celebrities' attorneys, but ignored them. The celebrities are now suing Squawker for millions of dollars. Additionally, many cable news pundits have expressed their disdain for Squawker's behavior, labeling it the "Pinhead of the Week."

Squawker's attorneys are confident that Squawker will be able to get this case dismissed. Should Squawker be liable?

II. SECTION 230 OF THE COMMUNICATIONS DECENCY ACT CREATES BROAD IMMUNITY FOR WEBSITES.

Federal courts generally agree that Section 230 of the Communications Decency Act provides interactive computer services, such as websites, broad immunity from various types of civil lawsuits.(fn8) State courts also recognize this consensus where "all but a handful . . . find that the website is entitled to immunity from liability."(fn9) This consensus is consistent with the text of Section 230, which clearly bars plaintiffs from bringing civil suits against websites and other online service providers when the suit is based on content provided by a third party.(fn10)

Congress passed Section 230 to achieve two main goals. First, it wanted to encourage free speech and promote e-commerce on the Internet without burdensome involvement from the government.(fn11) Imposing tort liability on the "new and burgeoning Internet medium" was seen "simply as another form of intrusive government regulation of speech."(fn12) In various statutory findings, Congress recognized that the Internet offered "a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity."(fn13) Furthermore, websites "have flourished, to the benefit of all Americans" without the burden of governmental involvement.(fn14)Therefore, it is "the policy of the...