Privacy Law Blog : Privacy Lawyers & Attorneys : Proskauer Rose Law Firm : CAN-SPAM, FCRA, FACTA

According to the International Association of Privacy Professionals, which broke the story on February 2, 2009, the charges against Fleischer are believed to be the first criminal sanctions pursued against a privacy professional for his company’s actions. Under European Union legislation that was incorporated into Italian law in 2003, Internet service providers (“ISPs”) are not responsible for monitoring third-party content posted to their sites, but are required to remove offensive content if a complaint is received. These laws offer to ISPs protections that are similar to those found under U.S. law in Section 230 of the Communications Decency Act of 1996. (See our Section 230 posts here.) But Italian authorities, specifically Milan public prosecutor Francesco Cajani, are prosecuting Google as an Internet content provider, rather than as an ISP, and Italy’s penal code states that such providers are responsible for third-party content on their sites. Cajani believes that Google, and its executives, violated this provision by allowing the 191-second clip to be uploaded to its video site.

On February 3, the Italian judge hearing the case -- which is expected to be ongoing for months -- suspended the proceedings until February 18 to consider procedural issues, but Google maintains that it did not violate any laws with respect to the video posting.  Also on February 3, the City of Milan joined the case with civil charges that Italian lawyers have cited as the rough-equivalent of class-action suit in the United States.  The city, according to Rocco Panetta, an Italian lawyer with Portolano Colella Cavallo, is representing several individuals it claims were injured by Google.

In a statement released on February 2, Google expressed sympathy for the victim’s family, but insisted that “We feel that bringing this case to court is totally wrong.  It’s akin to prosecuting mail service employees for hate speech letters sent in the post. What’s more, seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet.  We will continue to vigorously defend our employees in this prosecution.” Google’s public policy counsel for Google Italia, Marco Pancini, further commented that “We are confident the process will end in our favor.”

The so-called “Good Samaritan” provision of the CDA sets out, at 47 U.S.C. Sec. 230(c)(1), that     “[n]o 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.”  This immunity provision has been construed broadly in cases involving the publication of user-created content.  Nevertheless, in Fair Housing Council v. Roomates.com LLC, 489 F.3d 921 (9th Cir. 2007), aff’d en banc 2008 (9th Cir., April 3, 2008), the Ninth  Circuit Court of Appeals found Roommates.com was not immunized under Section 230(c) because it required every user to answer questions regarding the user’s age, sex and sexual orientation. The Ninth Circuit held that these questions allowed users to discriminate against other users in violation of the Fair Housing Act. For more information, see our blog entry here.  

In Doe v. MySpace, the Fifth Circuit found that the CDA immunized MySpace from the plaintiff’s negligence claim because it was merely the web-based publisher of third-party information, not the author of the content.  Although the plaintiff claimed that she was not seeking to hold MySpace liable as a publisher of third-party content, the court held that the plaintiff’s allegations “speak to MySpace’s role as a publisher of online third-party-generated content,” and thus the CDA applied.  he plaintiff also argued that MySpace encouraged or allowed members to post information after the profiles had been created, and therefore that MySpace would not be immunized by the CDA because it partially created the content. The court declined to review the issue as plaintiff failed to raise it in the lower court. 

Unlike Roomates.com, MySpace does not require its users to post personal information that could potentially lead to discrimination. Moreover, MySpace discourages its users from sharing of personal information on its website whereas Roommates.com made sharing personal information a requirement of using the service. 

Section 230(c) of the CDA will be addressed further in the ongoing Subway v. Quiznos case (Doctor’s Associates Inc., v. QIP Holders LLC) involving sandwich giant Subway suing rival Quiznos. The case revolves around user-generated videos created at Quiznos behest that compare Subway’s sandwiches unfavorably to Quiznos’. Quiznos claims that the videos were not created by the company and that the online posting of the videos is protected by the CDA as Quiznos was merely hosting the website. Advertisers are concerned that they will no longer be able to run contests featuring user-created content comparing their product to a competitor’s. The case will be tried in a Connecticut federal district court in 2009.

Section 230 Does Not Bar Federal or State IP Claims

Under Section 230 of the CDA, “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,” and thus, “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  Section 230(e)(2), however, states that the CDA should not “be construed to limit or expand any law pertaining to intellectual property.” Consequently, the CDA will not bar IP claims asserted against a site operator. 

The defendant argued that the Ninth Circuit Court of Appeals’ decision in Perfect 10 v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) limited Section 230(2) merely to federal IP claims and not state claims. The district court in Friendfinder, however, was not convinced that the Ninth Circuit interpreted that provision of the CDA properly.  

Instead, the court concluded that the plain language of Section 230(e)(2) suggested that neither federal nor state IP claims fall under the scope of the CDA. According to the district court, “The Ninth Circuit made no attempt to reckon with the presence of the term ‘any’ – or for that matter, the absence of term “federal” – in § 230(e)(2) when limiting it to federal intellectual property laws.” Thus, Section 230(e)(2) “applies simply to ‘any law pertaining to intellectual property,’ not just federal law.” 

Right of Publicity Is An IP Claim

The court then turned to the issue of whether the plaintiff’s invasion of privacy claim arises from intellectual property laws. An invasion of privacy claim encompasses four separate theories:  (1) the defendant intruded on the plaintiff’s solitude; (2) the defendant publicly disclosed private facts about the plaintiff; (3) the defendant cast the plaintiff a false light; and (4) the defendant appropriated plaintiff’s identity for their own benefit. According to the court, only the fourth theory (the right of publicity) has been recognized as an intellectual property right. Section 230 therefore would not prevent plaintiff from asserting such a claim against Friendfinder.

The court then held that in establishing a right of publicity claim, “some damage to the commercial value of an identity is presumed once it is proved that defendant has made an unpermitted use of some identifiable aspect of identity in such a commercial context that one can state that such damage is likely.” Since the plaintiff alleged that the site used portions of the plaintiff’s profile in search engine “teasers” and advertisements, the court found that the plaintiff had sufficiently set forth the claim. 

Ninth Circuit Maintains Limits on CDA Protection

In Fair Housing Counsel of San Fernando Valley v. Roommates.com, LLC, No. 04-57173 (9th Cir. April 3, 2008), another decision involving the CDA, the Ninth Circuit, sitting en banc, upheld its earlier decision that an online roommate matching website was not immune from liability under the CDA. In the prior opinion, the Ninth Circuit held, in part, that Roommates.com was not immunized from liability for posting questionnaires seeking information that could allow users to discriminate against other users in violation of the Fair Housing Act (“FHA”).

Writing for the 8-3 majority, Chief Judge Alex Kozinkski indicated that the Website lost immunity provided by the CDA because it facilitated discrimination rendered unlawful under the FHA. Judge Kozinkski stated, “Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business.”  Moreover, according to Judge Kozinkski, “This is no different from a real estate broker in real life saying, ‘Tell me whether you’re Jewish or you can find yourself another broker.’”  By facilitating unlawful discrimination, Roommates.com was rendered a publisher of discriminatory third party content, and therefore fell outside of the CDA’s immunity.