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.
Filed Under: liability, revenge porn, section 230, texas
Companies: godaddy, texxxan.com
Comments on “Court Rightly Finds That GoDaddy Isn't Liable For Revenge Porn Site”
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.
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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).
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I loved that comic. It was so freaking true.
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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.
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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.
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This factor is known as the “Moral Outrage” factor. It’s about as useful as moral outrage, too.
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See also “Won’t anyone think of the children?!” logic.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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“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.
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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.
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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.
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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.
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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.
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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.
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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.
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That’s actually not how secondary liability works.
"unintended" consequences
What makes you think the consequences are unintended? Think of the power that such a law would give to all “right-thinking” folks.
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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.
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Exactly right. There’s nothing unintended in any of these moves.
Well, we have the words “Franks” and “idiotic” in the same story — brace for the ad hominum tweet attacks.
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!
…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.
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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.
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!
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What makes you think the judge will make the same ruling after getting reversed on appeal?
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.