The Sixth Circuit Also Makes A Mess Of Section 230 And Good Internet Policy

from the no-good-deed-goes-unpunished dept

Yesterday we wrote about a bad Section 230 decision against Amazon from the Third Circuit. But shortly before it came out the Sixth Circuit had issued its own decision determining that Section 230 could not protect Amazon from another products liability case. But not for the same reason.

First, the bad facts, which may even be worse: the plaintiffs had bought a hoverboard via Amazon, and it burned their house down (and while two of their kids were in it). So they sued Amazon, as well as the vendor who had sold the product.

From a Section 230 perspective, this case isn’t quite as bad as the Third Circuit Oberdorf decision. Significantly, unlike the Third Circuit, which found Amazon to be a “seller” under Pennsylvania law, here the Sixth Circuit did not find that Amazon qualified as a “seller” under the applicable Tennessee state law. [p. 12-13] This difference illustrates why the pre-emption provision of Section 230 is so important. Internet platforms offer their services across state lines, but state laws can vary significantly. If their Section 230 protection could end at each state border it would not be useful protection.

But although this case turned out differently than the Third Circuit case and the Ninth Circuit’s decision in HomeAway v. City of Santa Monica, it channeled another unfortunate Ninth Circuit decision: Barnes v. Yahoo. In Barnes Yahoo was protected by Section 230 from liability in a wrongful user post. After all, it was not the party that had created the wrongful content. Because it couldn’t be held liable for it, it also couldn’t be forced to take it down. But Yahoo had offered to take the post down anyway. It was a gratuitous offer, one it didn?t have to make. But, per the Ninth Circuit, once having made it, Section 230 provided no more protection from liability arising from how Yahoo fulfilled that promise.

Which may, on the surface, sound reasonable, except consider the result: now platforms don’t offer to take posts down. It just doesn’t pay to try to be so user-friendly, because if the platform can’t get things exactly right on that front, they can be sued since, per the Ninth Circuit, Section 230 ceases to provide any protection. (And even if the platform might not ultimately face liability, it would still have to face an expensive lawsuit to get there.) So thanks to this case the Ninth Circuit ended up chilling platform behavior that we would have been better off instead encouraging to get more of. It may have won the battle for this person (their lawsuit could proceed) but it lost the war for the rest of the public.

This case from the Sixth Circuit presents a similar problem. Amazon did not have to do anything with respect to hoverboard sales, but it created liability problems for itself when it tried to anyway. Eventually it banned them, but more at issue is that it sent an email to purchasers indicating that there had been reports of problems with them:

?There have been news reports of safety issues involving products like the one you purchased that contain rechargeable lithium-ion batteries. As a precaution, we want to share with you some additional information about lithium-ion batteries and safety tips for using products that contain them.? The email included a link for the ?information and safety tips,? a link ?to initiate a return,? and a request that the recipient ?pass along this information? to the proper person if the hoverboard was purchased for someone else. [p. 5]

The plaintiffs argued that the email Amazon sent was not enough of a warning and that it should have been more clear about the fire hazard. [p. 6] The Sixth Circuit did not decide whether it was adequate or not. What it did decide, however, was that Section 230 was no obstacle to the litigation continuing to explore that question.

Tennessee tort law provides that an individual can assume a duty to act, and thereby become subject to the duty of acting reasonably.


In this case, Plaintiffs allege that Defendant gratuitously undertook to warn Plaintiff Megan Fox of the dangers posed by the hoverboard when it sent her the December 12, 2015 email, that Defendant was negligent in that undertaking, and that Defendant?s negligence caused them harm. The district court held that ? 324A was inapplicable to Plaintiffs? claims because it ?contemplate[d] liability to third parties.? (RE 161, PageID # 2221?22.) And the district court also held that Plaintiffs forfeited any ? 323 claim. The first holding was erroneous, and the second we need not address.


Plaintiffs argue that Defendant undertook to warn Plaintiff Megan Fox when it sent her the December 12, 2015 email, and that Defendant?s negligent warning caused physical harm to the other members of her family. Accordingly, while Defendant?s liability to Plaintiff Megan Fox is properly governed by ? 323, Defendant?s liability to the other members of her family is properly governed by ? 324A.7 See Grogan, 535 S.W.3d at 872?73. Thus, the district court?s holding that ? 324A was inapplicable to Plaintiffs? Tennessee tort law claim was erroneous.

Applying ? 324A to the facts of this case, Defendant chose to send the December 12, 2015 email to Plaintiff Megan Fox, and in doing so plainly sought to warn her of the dangers posed by the hoverboard.


Thus, we hold that Defendant assumed a duty to warn Plaintiff Megan Fox of the dangers posed by the hoverboard when it sent her the December 12, 2015 email. [p. 13-16]

The decision’s explanation of how tort law works is not striking. The problem is that all sorts of state tort law could reach the Internet, and strangle it, if state tort law could reach platforms. And here is a court saying it can, despite the existence of Section 230 generally saying that it can’t.

In a way, though, this case is much less dire for the Internet than some of the other cases we’ve discussed, like Oberdorf, HomeAway, and the Court of Appeals ruling in Armslist. Platforms can still avoid liability. But they will avoid it by curtailing the sort of beneficial activity Section 230 normally wants to encourage. In letting these state law tort claims go forward the decision reads as a big warning sign for platforms not to bother trying to help their users in similar ways. Amazon did not have to send an email, but by trying to reach out to users anyway it tempted trouble for itself it could have avoided if it had instead done nothing.

But if that fact doesn’t pull at the heartstrings, remember that the precedent will apply to any other platform, no matter how small. The moral of this story is that it is much safer for all platforms to do nothing than to try to do something. If trying to be helpful to users causes platforms pick up duties that they otherwise would not have had and face liability for not fulfilling them well enough, they won’t. They will be discouraged from trying, even though the public would be much better off if they were instead encouraged to continue these efforts. Curtailing Section 230 to allow state tort law to reach platforms now means that instead of getting more of the user-friendly behavior Section 230 tried to encourage, we will now get less.

Filed Under: , , ,
Companies: amazon

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “The Sixth Circuit Also Makes A Mess Of Section 230 And Good Internet Policy”

Subscribe: RSS Leave a comment
Gary (profile) says:

Etsy Etc.

So krap-craft Etsy wouldn’t be able to host sellers if they were liable for anything and everything that came thru the site.
eBay? Since they try to filter out bad stuff, they’d be held accountable for any bad products?
Or an eBook site that lets people self-publish – they’d be responsible if they they vetted the books.
But all Amazon has to do it put less effort into policing the marketplace, shedding their liability. I’m sure that will work well for buyers.

Anonymous Coward says:

Re: Re: Etsy Etc.

It’s quite obvious with Craigslist and Ebay that they don’t sell anything and you’re just seeing stuff posted by other people. Amazon is different:

When you receive a customer order:

  • We may fulfill that order using another seller’s unit of the same product if it’s closer to the customer

When another seller receives an order for the same product:

  • We may use a unit of your inventory to fulfill that seller’s order

A buyer has to pay attention to the "sold by" and "fulfilled by" text on each page and know how these differ. There’s plenty of evidence that people have had trouble with this.

I don’t know whether making "Amazon Marketplace" a separate site should be necessary to avoid liability, but it likely would help these legal cases.

Anonymous Coward says:

What it did decide, however, was that Section 230 was no obstacle to the litigation continuing to explore that question.

I’m a staunch Section 230 supporter but I have to agree with the court on this one. Section 230 shouldn’t even be a factor in this case; It should have nothing to do with whether the case can or cannot move forward. That Amazon is a "marketplace" like eBay and that they allow others to sell things via their platform is nowhere near the same thing as speech and would stretch 230 far too far to make sense here. Sellers should be responsible for the things they sell even if a "partner" is doing the selling in your store.

I also don’t think Amazon is at fault here. They did warn the buyer of some risk in the product. And at some point buyers need to do a little research, educate themselves, and take responsibility for their own choices. The hoverboard manufacturer and the person who actually sold it are probably liable but Amazon should be clear of this. Just not because Section 230 protects them (it shouldn’t protect them beyond the content of user reviews).

Anonymous Coward says:

Re: Re:

Indeed. This is equivalent to some seller’s lettuce at a Farmer’s Market having E. Coli, and the organizers of the market putting out a mailout to people who visited the seller’s stall. And then being sued by people who got sick because their mailout didn’t go far enough.

Isn’t there a Good Samaritan clause that’s supposed to cover situations like this?

BJC (profile) says:

Re: Re: Re:

The answer is, this is a defense to the actual suit at trial, but not at summary judgment.

If the farmer’s market had a responsibility, or took on the responsibility, as a matter of law, to warn people about the bad lettuce, unless the farmer’s market can provide evidence almost to the level of a video showing the plaintiff reading the warning out loud, saying "screw it, I’m eating that lettuce anyway," and then chomping down, the case goes to trial.

A trial that the plaintiff will almost certainly lose, but it will go to trial.

That One Guy (profile) says:

Those who are ignorant of history are doomed to repeat it

Be nice if the judges involved did at least some research on the subject, because this is practically what 230 was created to address. Thanks to a stupid ruling just before 230 was put into place sites were heavily encouraged not to moderate anything, because doing so would make them liable for it, hence 230.

Fast forward to this ruling and if trying to warn your customers of a potential problem creates liability if any of them ignore it or you don’t do a ‘good enough’ job, sites are heavily encouraged not to send out those warnings.

There are some moderation practices you want sites to engage in, but if the act of moderating opens them up to liability then it’s much safer for them to look the other way and ignore any problems, which is apparently a lesson that will have to be learned again with foolish rulings like this.

BJC (profile) says:

Re: Those who are ignorant of history are doomed to repeat it

I’d read the comment above yours by Careful Reader, which says that conceded to the court (so it wasn’t an issue) that the "assumption of the liability for sending a letter" claim was not covered by the Communications Decency Act.

Page 16, Footnote 8: "Defendant concedes that the Communications Decency Act, 47 U.S.C § 230, does not grant it immunity from Plaintiffs’ Tennessee tort law claim. "

That One Guy (profile) says:

Re: Re: Those who are ignorant of history are doomed to repeat i

Even if 230 doesn’t apply the outcome strikes me as basically the same, in that if Amazon is penalized because they tried to warn someone and didn’t do a ‘good enough’ job then the message sent to Amazon and other platforms is ‘keep your mouth shut’, similar to pre-230’s message being ‘don’t moderate at all’, which 230 was meant to address.

BJC (profile) says:

Disagree with this premise:

The problem is that all sorts of state tort law could reach the Internet, and
strangle it, if state tort law could reach platforms. And here is a court saying
it can, despite the existence of Section 230 generally saying that it can’t.

First, Section 230 is about "publishers." Now a lot of what goes on with the internet is "publishing," but there are many businesses that call themselves "publishers" when they’re really in the business of market-making or being a middleman or otherwise introducing two parties that, if it happened with 20th Century technology, you wouldn’t call it "publishing."

Next, there is no reason why state tort law shouldn’t, generally, reach the internet. Why can’t a state decide what the rules are inside its own borders and remove too-clever internet loopholes?

For example, if Texas decides widgets are a threat to public health and passes a law saying, "no one shall sell, or give the name and address of interested Texans to others to sell, widgets within the State of Texas," that I think covers Amazon selling widgets without being a CDA 230 violation.

Why shouldn’t Texas be allowed to ban widgets like this?

Anonymous Coward says:

Re: Re:

Why shouldn’t Texas be allowed to ban widgets like this?

Well they can ban their citizens buying such widgets, but banning every company on the Internet from selling them to Texans on the other hand is a big problem, when the number of laws, which can differ by country, state and city have to be complied with. The result would be only large corporation would have any hope of keeping up to date with such laws, and liable if the are a little slow to note that a new law applies to their sales somewhere.

Anonymous Coward says:

Re: Re: Re: Re:

More, I do not want to see the Internet become the means by which a few big corporations conduct their business, while the Individual cannot use it because the legal risks of selling to someone where the local law prohibits the sale, or requires specific local checks is too high.

If your only route to markets is via large corporations, they will soon be as bad as the labels, studios and publishers.

BJC (profile) says:

Re: Re: Re:2 Re:

So, two things:

First, this is always true for sellers. You can be in New York, Hawaii, China, whatever, and if you sell something that hurts someone in Kentucky, or is illegal in Kentucky, there’s a possibility that you’ll be liable in Kentucky or under Kentucky law. I remember writing a choice of law brief way back when where I argued that New York courts would apply California law to a products personal injury in California.

So, let me restate that: if you were a small business pre-internet, and you sold something, and hurt someone in another state, it was entirely possible you could be sued in your own state’s court under the law of a state that your product went to. Just because this seems new and weird to you doesn’t mean it hasn’t been how products law has worked for nearly 100 years.

As a result, you’re arguing that there shouldn’t be local products liability law for the internet, despite it being the case for businesses that can’t or won’t be on the internet.

Intentionally Juiced says:

Michigan Lawmaker Files Bill to End "Viewpoint Discrimination"

"Social media companies cannot eat their cake and have it too. They cannot enjoy the privileges of being a platform, such as immunity from liability for users’ content, while also enjoying the privileges of being a publisher to control what everyone may or may not say on their network," he added.

Michigan HB4801 would alter the state’s Consumer Protection Act to ban "a provider of an interactive computer service" that claims it is "viewpoint neutral, impartial, or nonbiased" from being able to "block a user’s speech; censor a user’s speech; ban a user; remove a user’s speech; shadow ban a user; deplatform a user; deboost a user; demonetize a user; otherwise restrict the speech of a user" based on their political views.

This, among others, is why Masnick is in such a panic.

By the way, refuting this entire piece is obvious: Common Law is for We The People, not mega-corporations. And if We don’t like RESULTS, then We can change the terms!

Menschen is my name in Sheboygan says:

Businesses TRADE "private" for permission FROM The Public.

The first act of anyone wanting to form a corporation or go into business is to ASK permission from The Public through our Public Servants. We The People are the Master in all, and any business ranks WELL BELOW Our Officers. IF the business meets certain conditions including promises to SERVE The Public and OBEY our laws and regulations, THEN a business is granted LICENSE to exist (supposedly for limited time, but in practice, perpetual).

Businesses are LICENSED entities. A corporation of course has no actual "corpus", that’s the sheer FICTION. Next, calling them "persons" is only a convenience for language. It does not by some magic make a fiction equal to a Person. (And what’s a "Person"? Best answered by that there is only ONE "person" in the entire United Kingdom: the monarch. That’s why the USA was founded by FIRST stating "all men are created equal".)

ONLY WITH permission can a business open its doors and invite in The Public to buy and sell. — And if want to sell things like Liquor, there’s MORE licensing required. — The second doors open (during "business hours"), any "natural" person has a certain degree of "right" (during good behavior as defined in common law) to be on the formerly private property. (I simplify / ignore VAST area including frequent usage, easements bought / granted / eminent domain by which persons esp as Citzens gain a "right" to use or be on property of others.)

Similarly, corporations ASKED permission to exist, set up web-sites for serving The Public, INVITE them in — under terms stated by "forms contract" which means only the visible terms, not any hidden, or "unconscionable", and definitely not solely at discretion of any given corporation, let alone for later changes, but ALWAYS must be within common law.

Proof that corporations are NOT "persons" is easy: "persons" cannot own other "persons", but corporations can own other corporations.

Now, Corporations wangled Section 230 of the Communications Decency (note how that’s been forgotten!) Act to immunize them from what users might publish. This is COMPLETE change from the law print publishers must follow. Purpose was for good of The Public to use the new possibilities of communicating on the Internet.

The Deal was: in exchange for new business opportunities, We The People immunize businesses (within reasonable) for what’s on the sites.

Those are The Public’s sites on which to publish as wish (within common law as ALWAYS). The businesses provide only the technical "platform" to make it easy for us.

BUT NOW corporations are trying to claim that the policing requirements given above actually grant them absolute and arbitrary POWER OVER The Public’s speech.

This is the KEY power that Masnick wants and asserts in the quote above. Clearly, if that view is allowed to continue and grow, then We The People will effectively be subject to a new form of corporate royalty.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...