Appeals Court Rejects Revenge Pornster's Appeal; Another Bad Section 230 Ruling

from the what's-up,-california? dept

We've noted in the last month or so a series of court rulings in California all seem to be chipping away at Section 230. And now we've got another one. As we noted last month, revenge porn extortion creep Kevin Bollaert had appealed his 18-year sentence and that appeal raised some key issues about Section 230. As we noted, it seemed clear that the State of California was misrepresenting a bunch of things in dangerous ways.

Unfortunately, the appeals court has now sided with the state, and that means we've got more chipping away at Section 230. No one disagrees that Bollaert was a creep. He was getting naked pictures of people posted to his site, along with the person's info, and then had set up a separate site (which pretended to be independent) where people could pay to take those pages down. But there are questions about whether or not Bollaert could be held liable for actions of his users in posting content. Section 230 of the Communications Decency Act (CDA 230) is pretty damn clear that he should not be held liable -- but the court has twisted itself in a knot to find otherwise, basically arguing that Bollaert is, in part, responsible for the creation of the content. This is going to set a bad precedent for internet platforms in California and elsewhere.

The court, not surprisingly, relies heavily on the infamous Roommates.com ruling that also said that site didn't qualify for Section 230 immunity, because it asked "illegal" questions (about housing preferences), and since the site itself had asked those questions, it was liable for creating that "illegal" content. That's different than what happened with Bollaert's UGotPosted site, but the court works hard to insist the two are close enough:
Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights. As in Roommates, but unlike Carafano or Zeran, Bollaert's Web site was "designed to solicit" (Roommates, supra, 521 F.3d at p. 1170, italics added) content that was unlawful, demonstrating that Bollaert's actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity.
I can predict that this paragraph is likely to show up in a bunch of other cases. People are going to insist that lots of other platforms that include any form of structure will now be liable if any of the content based on that structure violates the law. That, again, goes directly against the clearly stated purpose of CDA 230. And it's likely to create something of a mess for internet platforms that regularly rely on 230.

The really crazy thing here is that earlier in the ruling, the court noted that it didn't even need to answer the Section 230 question because they already had enough info to support charges of action "with the intent to defraud." But then it answered the CDA 230 issue anyway, and did so badly. No one's going to feel sorry for Bollaert, who is a complete creep. But the wider precedent of this ruling is going to be dangerous and will likely show up in lots and lots of lawsuits against internet platforms going forward.

Filed Under: california, cda 230, kevin bollaert, liability, platforms, revenge porn, section 230
Companies: ugotposted, yougotposted


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  1. identicon
    Wendy Cockcroft, 30 Jun 2016 @ 7:44am

    Re: Re: Re: Rare disagreement

    That's a compelling argument, Whatever. Now the question is, are you right? Mike seems to think that Bollaert provided the platform for creepy behaviour, then took advantage of the creepiness. The creepiness had to be there first for him to take advantage of it. If Mike is right, I'd have Bollaert for taking advantage of the creepiness, but a platform is a platform. He's only liable for his own creepiness, not the creepiness of his platform's users.

    Mike knows that if he posts a story by Tim Cushing in which cops get called out for preying on the people instead of serving and protecting them, there's a reasonable chance that the revolutionary comrades will show up calling for a violent uprising. As you quite correctly pointed out, Mike doesn't run this site with the intention of riling up the gun nuts but he does let Tim post stories that might.

    Okay, what about the NRA or Stormfront forums? They provide a platform for people with extremist ideas to sound off. If they use the forums to plan and enact some kind of armed confrontation with the authorities are the forum owners liable? They are set up to attract people who might do that kind of thing.

    Finally, I'm as opinionated as hell. It often gets me into trouble. I'm not responsible for the freak-out-ery that sometimes results from a statement I've made, I am only responsible for what I myself do. And by expressing views that upsets people with extreme viewpoints I think we can agree that by doing so I create a platform on which they can act. I'm doing it now with this comment.

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