Court Rightly Finds That GoDaddy Isn't Liable For Revenge Porn Site

from the for-now... dept

In the ongoing attempts to deal with the (very real and serious) issue of "revenge porn" websites, various parties have been trying desperately to blame third parties, rather than figuring out ways to go after those actually responsible. In one such case, victims of the site had gone after the host and registrar of the revenge porn site Texxxan.com, which happened to be GoDaddy. A Texas trial court totally ignored Section 230 in finding GoDaddy liable. Thankfully, an appeals court has now reversed that, highlighting the importance of Section 230, and the lengths to which many will go to in an attempt to get around it, in order to blame third parties for the actions of others. Basically, the plaintiffs here tried to find a way around Section 230 by arguing that it "didn’t apply to intentional torts, obscene material that isn’t constitutionally protected, and civil lawsuits based on criminal statutes." However, the court rejected all of that:
All of plaintiffs’ claims against GoDaddy stem from GoDaddy’s publication of the contested content, its failure to remove the content, or its alleged violation of the Texas Penal Code for the same conduct. Allowing plaintiffs’ to assert any cause of action against GoDaddy for publishing content created by a third party, or for refusing to remove content created by a third party would be squarely inconsistent with section 230.
As Andrew McDiarmid at CDT points out, this is important:
Last week’s opinion reads like a greatest-hits record of Section 230 case law, and makes it clear that because GoDaddy had nothing to do with the creation of the content at issue it cannot be held liable. This is the right answer; hosts like GoDaddy must be protected from liability for their users’ (and their users’ users’) speech so that the Internet remains a vibrant platform for free expression and access to information. Otherwise, who would be willing to take the risk of opening up their servers for public hosting?

The plaintiffs attempted to argue that Section 230 doesn’t apply when the content at issue is illegal – an argument the judges rightly rejected. Shielding hosts from liability when their users upload illegal content is precisely the point of Section 230: those who post such content – not those who host it – should be legally responsible for it. Thankfully, the court recognized as much, writing that such a reading of the statute “would undermine its purpose.”
Of course, this is not the final word on this. The attorney for the plaintiffs has said that they will appeal to the Texas Supreme Court. And of course (once again) we have the issue that the person who has been credited with helping to draft the upcoming federal revenge porn law has flat out said that it's her intention to make companies like GoDaddy liable.
"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."
Indeed, this would target the GoDaddy's of the world as well. I recognize that there are serious issues involved in revenge porn, but targeting third parties like web hosts and search engines is idiotic. It will have tremendous unintended First Amendment consequences.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Zauber Paracelsus (profile), Apr 17th, 2014 @ 12:33pm

    You know, I think I realized where the support for secondary liability comes from. It comes from the general belief that when you're in charge of something, you are responsible for the actions of your subordinates.

    Except, that doesn't really apply in these situations because the users are NOT subordinates. They are entirely outside of the organization, and therefor the people in charge aren't responsible for their actions.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    murgatroyd (profile), Apr 17th, 2014 @ 12:42pm

    "unintended" consequences

    It will have tremendous unintended First Amendment consequences.

    What makes you think the consequences are unintended? Think of the power that such a law would give to all "right-thinking" folks.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Mike Masnick (profile), Apr 17th, 2014 @ 12:46pm

    Re:

    You know, I think I realized where the support for secondary liability comes from. It comes from the general belief that when you're in charge of something, you are responsible for the actions of your subordinates.

    Well, also two other factors:

    1. Laziness. It's so much EASIER to go after the big intermediary than deal with those actually responsible.

    2. Money. The intermediaries often have a lot of it.

    Hence the reason we often refer to these things as "Steve Dallas" lawsuits from this old comic:

    http://www.gocomics.com/bloomcounty/1986/06/22/#.U1AvQPldVgw

    Actually, the order above is wrong. It's money first (and maybe last too).

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Glen, Apr 17th, 2014 @ 12:50pm

    Re: Re:

    I loved that comic. It was so freaking true.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    GMacGuffin (profile), Apr 17th, 2014 @ 12:54pm

    Well, we have the words "Franks" and "idiotic" in the same story -- brace for the ad hominum tweet attacks.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 12:55pm

    Re: "unintended" consequences

    Think of the power such a law would give the labels and studios in their effort towards turning the Internet a controlled publication system, like cable TV etc.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    madasahatter (profile), Apr 17th, 2014 @ 12:57pm

    Re: Re:

    On point 2, I would suspect most of the owners of revenge porn sites do not much in assets. So if someone one won a judgement the assets are not likely to cover the amount. Godaddy, or most other hosting companies do have a decent sized bank account, whether they are at fault or not. Many of the lawyers (shysters?) are more interested in the cash not justice.

    On point 1, any attempt to determine a site's ownership will take some work and possibly a few subpoenas, which costs money. This is money that someone has to front.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    sorrykb (profile), Apr 17th, 2014 @ 12:59pm

    Re: Re:

    I would argue that there's a third factor, which in some cases might even be more powerful than money, the "This is awful and something needs to be done" factor. (and yes, this is awful)

    So, I would say you're only partly right with the laziness and money explanation, but since you've invoked Bloom County, I find it impossible to disagree. Bloom County logic is unassailable.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 1:04pm

    I support this appeal

    GoDaddy must not be allowed to escape responsibility.

    Neither, of course, should their router manufacturer (Cisco, Juniper, whoever) since of course their hardware physically transmitted the bits compromising the web site. And the server vendor (Dell? IBM? HP?) must also be held accountable. So too the network cable vendor, the rack hardware vendor, the disk drive manufacturers, the CPU makers, the memory vendor and the supplier of the operating system. Let's also not forget the application software (Apache Software Foundation?) and whoever wrote the scripting language used to power the site (Larry Wall?) nor should we forget the OS author (Linus Torvalds?).

    Someone must pay because...ummm...because someone must pay!

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 1:09pm

    ...but targeting third parties like web hosts and search engines is idiotic. It will have tremendous unintended First Amendment consequences.

    You're assuming it's unintended, I wouldn't make that jump personally.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 1:09pm

    Re: Re: Re:

    This factor is known as the "Moral Outrage" factor. It's about as useful as moral outrage, too.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 1:20pm

    Re:

    Well, it's also from traditional notions of knowingly profiting from someone else's misdeeds. Typically, if someone says "hey, I need a crowbar to get into that locked house", and you sell them the crowbar, you might be held liable for your knowing aid of the crime.

    Similarly, if GoDaddy knowingly hosts a site that is either criminally or civilly wronging people, it would normally be held liable.

    Section 230 prevents that, and in most cases I agree that Section 230 is a good idea. I think in the case where the *purpose* of the site is something that's contrary to law, and GoDaddy has notice of this, I would approve of a revision to Section 230 to allow liability.

    Of course, you have to make sure you don't let the exception swallow the rule.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    madasahatter (profile), Apr 17th, 2014 @ 1:28pm

    Re: Re:

    Actually a very poor analogy, Section 230 exists so that registrars, ISPs, and hosting companies do not need to actively review any content. This removes them from needing to ask or knowing what the site owners do. Otherwise, they would need to police third-party content with all potential liabilities.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 1:44pm

    Re: Re: Re:

    I'm not suggesting they need to ask or should need to ask. I'm not sure how you got that from my post or analogy (hardware stores aren't required to ask their customers if they intend to use crowbars for lawful purposes).

    But if they *do* have reasonable notice, I don't think it's unreasonable for them to either stop aiding the wrongful activity or risk/accept some liability for their knowing aid.

    That's the way it is generally in the law, and as much as the Internet needs freedom to develop, I'm not convinced that blanket immunity (it's not really blanket, since it doesn't apply to IP-related claims) is the best balance.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 1:48pm

    Re: Re:

    Do you expect your phone company to prevent people leaving offensive voice mail for you? A hosting company is acting in a similar fashion, providing a store and forward service to people. The difference is you 'own' the mailbox for voice, but the poster 'owns' the mailbox web content.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 1:51pm

    well done to the appeals court for reversing the bad decision ruled previously. the really scarey and ridiculousness of this is that the judge who made the bad ruling originally will still be residing over similar cases, ruling the same way as before, fucking everyone about who then has to go to appeal. why dont these judges either get specific training on specific sorts of cases, ie, internet orientated or not sit on these type of cases ever again? maybe the appeals court judges dont have much work on but i bet they get pissed at constantly reversing stupid decisions from lower judges when they could be doing something a little more useful!

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 2:01pm

    Re: Re: Re: Re:

    However, the only reasonably notice would be after a trial where the owner of the site is adjudicated as at fault. A mere accusation, even if by the government (especially by the government?), would not be enough.

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Internet Zen Master (profile), Apr 17th, 2014 @ 2:13pm

    Re: Re: Re: Re:

    See also "Won't anyone think of the children?!" logic.

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    Votre (profile), Apr 17th, 2014 @ 2:55pm

    Re: "unintended" consequences

    Exactly right. There's nothing unintended in any of these moves.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Lurker Keith, Apr 17th, 2014 @ 4:00pm

    Re:

    No, even the ones who would intend the consequences you're thinking about would still not expect other consequences... namely when it gets so twisted as to backfire on them.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 4:14pm

    Re: Re: Re: Re: Re:

    I disagree. There's a huge range between "mere accusation" and "judgment after a full trial." An accusation can be supported with evidence that a reasonable person would believe, without the need for a full trial or judgment.

    Again, I'm not suggesting Section 230 should be eliminated, but I think there is some level of malfeasance that shouldn't be covered. What I mean by that is that if we're talking about a forum that every once in a while has some tortious or criminal contributions by third parties, that's not enough.

    However, if there is evidence that the primary purpose of the forum is to engage or solicit tortious or criminal activity, maybe there's room for liability.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 4:16pm

    Re: Re: Re:

    No, I don't.

    However, I don't think it's unreasonable for a phone company to stop providing service to a number that is used exclusively or primarily for making illegal or tortious phone calls.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Apr 17th, 2014 @ 4:17pm

    Re:

    What makes you think the judge will make the same ruling after getting reversed on appeal?

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymoose, Apr 17th, 2014 @ 4:51pm

    Prof. Mary Anne Franks is behind the federal legislation, and I would imagine that she really doesn't like the first amendment and really, really wants to make sure law is a growth industry.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    That One Guy (profile), Apr 17th, 2014 @ 5:06pm

    Re: Re: Re: Re:

    After a court case proving that their actions are illegal, sure, but before, no, even if someone's actions appear on the surface to be dicey, they still deserve to be able to defend themselves before being silenced by mere accusation.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Bergman (profile), Apr 17th, 2014 @ 5:42pm

    Re:

    I wonder how the judge in that lower court would react if he received every traffic ticket for every traffic violation committed by an employee of the court? If every time someone in the courthouse littered, that judge would be fined?

    After all, that's how secondary liability works.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Apr 18th, 2014 @ 1:12am

    Re: Re: Re: Re: Re: Re:

    Given how the DMCA is abused, by purpose or accident, extending the requirement act on accusation will increase the amount of censorship out of all proportion to any valid use.

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    G Thompson (profile), Apr 18th, 2014 @ 1:42am

    Re: Re: Re: Re: Re: Re:

    you're talking about vicarious liability with foreknowledge Which if 'upon balance' a 'reasonable' person would state that it is most likely being used for xxx illegal (not unlawful/civil.. that's where it should never occur) purposes then YES the vicarious liability should exist.

    This then places the onus on the accuser to show that the provider DID know (not "should of" known) and that they had an obligation to at the minimum restrict access until at such time an authorised trier of facts makes a decision.

    Though a 'primary purpose' has to be also proven.. and "just maybe", assumptions, "becasue I am butthurt" or "protect the children" have no bearings whatsoever on this. The bar needs to be set high

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Apr 18th, 2014 @ 9:05am

    Re: Re: Re: Re: Re:

    Why? They aren't entitled to a third party's service, and I don't think the third party should be entitled to knowingly support wrongdoing.

    Also, I'm not suggesting that a mere accusation should be sufficient for liability.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Apr 18th, 2014 @ 9:06am

    Re: Re:

    That's actually not how secondary liability works.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Apr 18th, 2014 @ 9:38am

    Re: Re: Re: Re: Re: Re:

    What standard do you suggest?
    Please note; for web scale services the provider should not be expected to investigate any accusations, they can all too easily be swamped by accusations.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Apr 19th, 2014 @ 9:59pm

    Re: Re: Re: Re: Re: Re:

    "An accusation can be supported with evidence that a reasonable person would believe, without the need for a full trial or judgment."

    Wow that sentence scares me, and I hope I never see it again. Beyond slippery slope and approaching full-on vertical drop.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Pragmatic, Apr 22nd, 2014 @ 5:23am

    Re: Re: Re: Re: Re:

    True, but it's no fun being the butt of the revenge porn joke. Couldn't you DMCA it in some way if you can prove you're in it and that it would be detrimental to your reputation, etc.?

    I can understand the fear of censorship, etc., but the public doesn't benefit from seeing people naked in images or videos they never intended the world to see.

    Is there a way to balance privacy rights with the need to prevent the slippery slope to laws that protect people from embarrassment over faux pas, etc., that we actually might need to know about? I'm thinking of Mitt Romney's 47% remarks that cost him the election. We sure as hell needed to know that.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
Advertisement
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
Advertisement
Recent Stories
Advertisement
Support Techdirt - Get Great Stuff!

Close

Email This

This feature is only available to registered users. Register or sign in to use it.