October 16, 2015 Practice Points

Website Immunity under the Communications Decency Act

By Jenna A. Hudson

To encourage the growth of the internet, the Communications Decency Act immunizes companies that host content from liability for that content. However, recent caselaw confirms that this immunity is not boundless. Accordingly, counsel for both website operators and those seeking redress for website content should keep an eye on how the development of caselaw in this area.

The Communications Decency Act distinguishes between "information content provider[s]," which create or develop website content, and "interactive computer service[s]," which provide or enable multiple users to access content. By a strict reading of the Act, information content providers can be liable for content and interactive computer services cannot. However, as shown by recent caselaw, not all website operators are immune from liability for their website's content.

In J.S. v. Village Voice Media Holdings, --- P.3d ---, 2015 WL 5164599 (Wash. Sept. 3, 2015), the Supreme Court of the State of Washington, sitting en banc, held that a case against website Backpage.com can proceed notwithstanding Backpage.com's argument that it is immune from liability under the Communications Decency Act. The plaintiffs in that case allege that Backpage.com not only hosts but helps develop sex trafficking advertisements that appear on its website. The court therefore held that—accepting plaintiffs' allegations as true, including any reasonable inferences to be taken therefrom—Backpage.com is not entitled to immunity.

The Washington Supreme Court's decision rested in part on the established rule that a website operator can be both an "information content provider" and an "interactive computer service" and therefore "may be immune from liability for some of the content it displays to the public but be subject to liability for other content." See id. (quoting Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008)). Although the caselaw in this area continues to develop as the internet's presence in everyday life expands, there is still room for debate regarding when a website operator will or will not be liable for content it displays. Compare, e.g., Parisi v. Sinclair, 774 F. Supp. 2d 310 (D.D.C. 2011) (immunity), and Ben Ezra, Weinstein, and Co. v. Am. Online Inc., 206 F.3d 980 (10th Cir. 2000) (immunity), with Perkins v. Linkedin Corp., 53 F. Supp. 3d 1222 (N.D. Cal. 2014) (no immunity), and Stevo Design, Inc. v. SBR Mktg. Ltd., 968 F. Supp. 2d 1082, 1090–91 (D. Nev. 2013) (no immunity).

One thing is clear, however: defense and plaintiffs' counsel alike should monitor developments in this area. On the defense side, caselaw might (at least without skilled argument by counsel) subject website operators to previously unforeseen liability for content. And on the plaintiffs' side, caselaw may open up new avenues for recovery.

Keywords: product liability, litigation, immunity, Communications Decency Act, website operators

Jenna A. Hudson is with Gilbert LLP in Washington, D.C.

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