Lawyer: Yahoo Lost Sec. 230 Immunity Because It Didn't Hand Over Personal Info; Court: GTFO

from the please-allow-me-to-entertain-you-with-my-legal-theories dept

Sometimes litigants start out with a good case... or at least a credible one. Then they ruin it by getting creative. The day-to-day work of adjudicating may be a bit dry, but novel legal arguments rarely provide anything more than entertainment for bystanders.

Lawyer and author Thomas Hall originally sued three individuals for alleged online harassment. According to his first complaint, Hall had drawn the ire of supposed white supremacists who bombarded him with hundreds of "threatening and disparaging emails." Hall sought a restraining order against the three defendants, but apparently needed a bit more personal info before he could get that order approved. [via Eric Goldman]

That's when he got creative. Having received no help from Yahoo in identifying the people behind the alleged harassment campaign, Hall decided to sue Yahoo as well. That's when the case went from credible to WTF. From the decision [PDF]:

On August 29 2014, Hall filed the instant action against Lund, Jessop, and Dunk for intentional infliction of emotional distress, libel, false light invasion of privacy, and invasion of privacy. In addition to those named or identified in the previous harassment action, Hall named as a defendant derHoaxster@gmail.com (derHoaxster), and alleged that derHoaxster had “published multiple statements disparaging Plaintiff as dishonest in his law practice and in his personal life.” Hall also named Yahoo as a defendant, based on allegations that Yahoo had published or republished threatening and defamatory statements made by Lund, Jessop, Dunk, and derHoaxster.

Yahoo, naturally, claimed it had done no such thing. It also pointed out postings by third parties were the third parties' problem, not Yahoo's. Hall, however, argued Yahoo could be proven to be responsible for the supposed republished content. The court humored him. Hall did not fail to disappoint.

On July 17, 2015, Hall filed a first amended complaint (FAC) that included the same causes of action alleged in his initial complaint as well as a new fifth cause of action against Yahoo for intentional interference with contract. In the new cause of action, Hall alleged that Yahoo had flooded his America Online (AOL) email account with more than 2000 emails denigrating AOL’s services. Hall’s FAC also alleged that Yahoo was not shielded by the CDA because Yahoo had failed to identify the users of the screen names who had posted defamatory statements about him, and that Yahoo itself was the “content provider” of those statements.

This was Hall's attempt to peel back Yahoo's Section 230 immunity. It's an interesting theory -- Yahoo's failure to identify strips it of immunity. It's also one without any legal basis. This amended complaint didn't do much for Hall. Yahoo responded with one of its own under California's anti-SLAPP law. In support of its motion, Yahoo submitted an affidavit stating it did not create any of the content in its forums, bulletin boards, chatrooms, etc.

Hall simply doubled down.

Hall opposed the demurrer and anti-SLAPP motion, arguing that Yahoo was not shielded from liability under the CDA because it had not provided, in response to Hall’s discovery requests, telephone numbers for the users of the screen names “pddunk@yahoo.com” and “derHoaxster@yahoo.com.”

The anti-SLAPP motion was granted and Hall appealed. The appeals court takes particular interest in Hall's bizarre Section 230 theories.

Hall’s argument that Yahoo was required to identify the persons who posted the objectionable content by providing the names, addresses, telephone numbers, or other identifying information for such persons is legally unsupported. The CDA contains no such requirement, and Hall cites no authority that construes the statute to impose such a requirement. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 (Delfino), a case on which Hall relies, undermines rather than supports his position. The court in Delfino concluded that because “there was no evidence that Agilent [the interactive computer service provider] played any role whatsoever in ‘the creation or development’ of” the objectionable content that was the subject of the action, it clearly satisfied the third element required for a finding of CDA immunity. (Id. at p. 807.) Here, there was undisputed evidence that Yahoo was not responsible, in whole or in part, for the content of the emails and posts that are the subject of Hall’s claims. The trial court accordingly did not err by granting the anti-SLAPP motion.

As the court points out earlier in the decision, Yahoo's declaration that it did not post or publish the allegedly defamatory content went uncontested by Hall. Instead, Hall picked his misunderstanding of Section 230 as the hill to die on. On top of having his lawsuit dismissed (both for failure to state a claim and under California's anti-SLAPP law), Hall will now be paying Yahoo's legal cost.

The decision here is another reminder of two things:

1. There is still no federal anti-SLAPP law, something that would greatly discourage baseless lawsuits like these from being brought in federal court. It would also discourage the same behavior in state courts, which is where this one was filed.

2. Section 230 provides important protections for service providers who are almost always the easiest party to find and serve, even if they've done nothing else but provide a platform for people to speak their minds.


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  • icon
    Anonymous Anonymous Coward (profile), 14 Aug 2017 @ 4:14pm

    The decision here is another reminder of a third thing

    Just because someone (not necessarily the attorney named in this article) goes to law school, and passes a bar exam, does not mean they might also be a blithering idiot who will go to any length to prove whatever point they are trying to make. Even if those efforts attempt to twist and turn the law into pretzel logic that is easily identified as pretzel logic by Courts of Appeal.

    This means one should be very careful when they choose their lawyer.

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

    • icon
      JoeCool (profile), 14 Aug 2017 @ 4:33pm

      Re: The decision here is another reminder of a third thing

      The ones who try to twist the law the most often consider themselves the smartest.

      Self-proclaimed genius: "See how brilliant my twist is?"

      Court: "No. Pay the man."

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

  • identicon
    Anonymous Coward, 14 Aug 2017 @ 5:22pm

    Section 230 immunity upheld by the court?

    MyNameHere's not going to like this, is he?

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 14 Aug 2017 @ 5:28pm

      Re:

      So, if I understand this, the company actually doing the publishing is immune, but the authors of the articles and the authors of comments are personally liable. What if the publisher pays the authors of the articles and/or the authors of the posts about the articles? In that case, are all of the publisher, article authors and comment authors subject to liability? Does Respondeat Superior apply, for example, to Techdirt? What about the people who pay Techdirt - are they liable too?

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

      • icon
        ThaumaTechnician (profile), 14 Aug 2017 @ 5:41pm

        Re: Re:

        Read the decision. It's only 14 pages. And they used a large font.

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

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 14 Aug 2017 @ 5:51pm

          Re: Re: Re:

          Read it. Yahoo did not write or pay others to write the claimed defamatory materials. Techdirt did. Does that mean Techdirt has to turn over all the Email addresses, etc. of the Techdirt community?

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

          • identicon
            Anonymous Coward, 14 Aug 2017 @ 7:07pm

            Re: Re: Re: Re:

            What are you even talking about?

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

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 14 Aug 2017 @ 7:13pm

              Re: Re: Re: Re: Re:

              Well, maybe it's me no one seems to understand me today. This article showed that Yahoo did not have to turn over anything, because they were not involved in authoring the alleged defamatory materials. In Techdirt's case, they did author the defamatory materials. So, if Shiva asked for all the personal information of all the Techdirt posters who wrote about him, would Techdirt have to hand it over? That is, they could not use the same defense as Yahoo, right? That's what I'm talking about.

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

              • icon
                OldMugwump (profile), 15 Aug 2017 @ 9:48am

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

                The original articles about Shiva on were authored by Techdirt.

                The comments in the comments section were not.

                Do you not see the distinction?

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

      • icon
        Anonymous Anonymous Coward (profile), 14 Aug 2017 @ 5:44pm

        Re: Re:

        I think you do not understand, or are obstinately feigning a lack of understanding because you are possibly paid to do so.

        Firstly, publishing and hosting are two different things. But I think you know that and constantly choose to ignore that difference.

        Secondly, something actually illegal, civilly or criminally must occur for any kind of liability. Saying something is illegal does not make it so. That is why there are laws and courts and standards of proof. But I think you know that too, see above.

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

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 14 Aug 2017 @ 6:50pm

          Re: Re: Re:

          I don't know why you infer "feigning" on my part, I don't believe we even know each other. "Publishing and hosting are two different things". Really? How are they distinguished (serious question)?

          My question about Respondeat Superior is also a serious question - for example, your posts displays an Insider moniker, and your profile displays an Insider badge. Does that mean Techdirt takes on the liability for your posts? Or does that only apply if Techdirt actually pays you and controls your actions? What about people who pay Techdirt? For example, if it could be shown that Google paid Techdirt to promote a particular agenda (Shiva, for example), could Google be held liable?

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

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 14 Aug 2017 @ 6:53pm

            Re: Re: Re: Re:

            Sorry, I left out one question - if Techdirt benefits from being on the "tip of Google", would that be considered payment? It sounds valuable to me. Who wouldn't want to be on the "tip of Google" to promote their product?

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

            • identicon
              Anonymer Feigling, 15 Aug 2017 @ 5:57am

              Re: Re: Re: Re: Re:

              "...if Techdirt benefits from being on the tip of Google, would that be considered payment? It sounds valuable to me."

              Nein! If zee 'tip of Googles' ist gut fur Techdirt, zen Googles should pay zee Techdirt. Ranking hoch? Zat ist profitable only fur *Googles*! If Googie don't pay up zee geld zu alles, zey should only get zee shaft!

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

          • icon
            Anonymous Anonymous Coward (profile), 14 Aug 2017 @ 7:02pm

            Re: Re: Re: Re:

            You may or may not be one of the trolls that inundate this blog (your tone suggests that you are) with disingenuous comments that try to disrupt the discussion. Your questions are stupid and express a structured ignorance over things that are plain to many. Except maybe those that are paid to express such ignorance.

            If you want to know about the insider program, sign up, you will learn all about it, and then we will be able to distinguish you from others. Even Anonymous Coward is pseudo anonymity as writing style is a give-a-way. Pick a name not already used, and remain pseudonymous, but distinguishable.

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

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 14 Aug 2017 @ 7:09pm

              Re: Re: Re: Re: Re:

              Well, your tone suggests something as well, but I won't mention that. I think my question about Respondeat Superior is not stupid. There is a legal theory that if you pay someone to do something, and you control (or at least influence) their actions, and they do something wrong in the commission of their employment, you take on liability as their employer. I read a case about a man driving to the airport to attend a convention in his field, and he hit somebody. The victim sued the employer of the man driving based on the theory that he was on company business, and he won. That is, employers are liable for their employees actions, and the definition of employee is a bit fungible. If you don't know the answer to that, or you are not familiar with this area of the law, just say so, I don't care. If you are familiar, maybe you could grace us with an answer, or at least not post nastygrams.

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

              • icon
                Anonymous Anonymous Coward (profile), 14 Aug 2017 @ 7:32pm

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

                The stupidity is in your assumption that commenters are paid by Techdirt.

                The stupidity is also in that Techdirt published something defamatory. That has yet to be proven. Once in a while the authors of the articles (they are, I think, paid to write those articles, but have no proof of that) do sometimes make an appearance in the comments, we know who they are, and their appearances in the comments are rare. The rest of us are not paid by the blog, but some of us do pay to support the blog.

                And because you continue to assert your stupidity, without taking any notice of non nasty responses, tells us that you are in fact not worth responding to. So I am done with you.

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

                • This comment has been flagged by the community. Click here to show it
                  identicon
                  Anonymous Coward, 14 Aug 2017 @ 7:36pm

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

                  Wow, that's interesting. "We know who they are". Who are they? Or is that an "Insider Secret"?

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

                  • identicon
                    Anonymous Coward, 14 Aug 2017 @ 7:59pm

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

                    You know Shivas lawsuit is going badly when he sends his minion over to the TD forums to solicit legal advise.

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

                  • icon
                    Ben (profile), 15 Aug 2017 @ 4:53am

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

                    When TD staff post in comments their messages are highlighted with a blue(-ish?) background. Quite obvious so we will know who they are.

                    Not a secret. Just obvious.

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

          • identicon
            Anonymous Coward, 14 Aug 2017 @ 7:09pm

            Re: Re: Re: Re:

            But who pays for the tinfoil?

            And who pays you?

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

          • icon
            Matthew Cline (profile), 14 Aug 2017 @ 8:30pm

            Re: Re: Re: Re:

            For example, if it could be shown that Google paid Techdirt to promote a particular agenda (Shiva, for example), could Google be held liable?

            That's an awfully odd hypothetical. Why would Google care about Shiva?

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

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 14 Aug 2017 @ 8:49pm

              Re: Re: Re: Re: Re:

              I think Shiva embodies an image that the Google Globalists do not appreciate. I see it as a few highly capitalized companies (Google, Facebook, Red Hat, Amazon, others) with an international business agenda. They have their plans to grow their business, and most of the growth will be international and based on "free" products. They have no need for outside innovation or innovators to carry out their plans. In fact, outside, low capital innovators (like Shiva) could wipe any or all of them out with a single patent. In America, that is the level of their risk in business, and rightly so, it's what we want. Change, invention, improvement are wealth multipliers. So, they have a self interest in promoting their own version of history, of who invented Email, of how bad patents are, how IP shouldn't be protected, it should be free to all, etc, and so on. Shiva represents the opposing view - that individual inventors can change the world, especially within the framework of American law. The constitution, for example, speaks directly to patents. These big businesses have no interest in people like Shiva, they would prefer to label him a fraud and a liar, when his statement "I invented Email" is provably true. Simply consider Shiva saying this in the moment after he filed his copyright. To call him a liar and a fraud for saying it just defies belief. I don't think they will get there using the first amendment, but I guess we will all find out together. It is hard to see how Techdirt gets to the "tip of Google" without Google's help. The simple answer is Google pays them with promotion, that's why Techdirt makes any money at all.

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

              • icon
                Matthew Cline (profile), 14 Aug 2017 @ 9:08pm

                The GPL...

                This is very tangential, but I'm curious as to what you think of the legality of the enforcement of the GPL. (That is, I'm not asking about your opinion of the motivations/goals of those who use or support the GPL)

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

              • identicon
                Anonymous Coward, 14 Aug 2017 @ 9:46pm

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

                Oh Hamilton. Your tinfoil hat has cut off the circulation to your brain again.

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

              • identicon
                Anonymous Coward, 15 Aug 2017 @ 1:21am

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

                They have no need for outside innovation or innovators to carry out their plans.

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

              • identicon
                Canuck, 15 Aug 2017 @ 1:58am

                Feck off, Shiva

                "Publishing and hosting are two different things." Really? How are they distinguished (serious question)?

                That's not a serious question. You already know the answer. Even if you didn't (which you do), you could Google it.

                Wow, that's interesting. "We know who they are". Who are they? Or is that an "Insider Secret"?

                More tripe. Each story's author is listed right at the top of the page. But again, you already knew that.

                In fact, outside, low capital innovators (like Shiva) could wipe any or all of them out with a single patent.

                Shiva's low, all right. Low down lying scum. BTW, I'm in Canada - come and sue me too.

                Shiva represents the opposing view - that individual inventors can change the world

                Right, because Shiva didn't change anything. His software died shortly after birth. Writing a mail program in ForTran wasn't very bright, but then he didn't know all that much, did he? Shiva's program never left its little pond. Meanwhile, out in the real world, the real talent did change the world.

                his statement "I invented Email" is provably true. Simply consider Shiva saying this in the moment after he filed his copyright.

                Ah, but he didn't say it then. Instead, he's saying it now. And he's rewritten history by changing his claims and backdating events. And why did he do this? Because he's a liar and a fraud and a con artist.

                It is hard to see how Techdirt gets to the "tip of Google" without Google's help.

                Of course, it's easy to not see what you don't want to see, eh?

                In closing, feck off, Shiva.

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

                • This comment has been flagged by the community. Click here to show it
                  identicon
                  Anonymous Coward, 15 Aug 2017 @ 3:37am

                  Re: Feck off, Shiva

                  Wow, I like you a lot. You're special. Good news, I heard from the judge - the case is going ahead. He's already finished his writing, his clerks have to tidy it up a bit, but here's the jist: "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).

                  He loves this particular quote, I know that for a fact. Since he took the time to point it out in this case, I think it means he has no interest in trying to decide the matter, and that it belongs with the jury. So, the case is going ahead.

                  That's what I heard, anyway. I'm only telling you because you're special.

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

              • icon
                Stephen T. Stone (profile), 15 Aug 2017 @ 3:52am

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

                his statement "I invented Email" is provably true

                You can prove it only by ignoring the facts surrounding the development of email—none of which he has ever disproven—or by changing the definitions of words and phrases such that the claim becomes true.

                Shiva Ayyadurai did not invent email as we know it today. His program was born, lived in, and died in isolation. He did not influence any of the work done by ARPANET that happened before his program existed, nor did he influence any of the work done on the major email protocols that happened after he finished writing his program. He cannot claim to be the sole inventor of email without either misrepresenting or outright lying about his claim.

                Destroying Techdirt will not change those facts. Neither will hiring a troll whose sole intent in posting here is to deflect and distract from the truth. The only way to change those facts is to prove that they are, in fact, incorrect. Shiva’s lawsuit hinges, in part, on whether he can do just that. Since he has never been able to do so before, I have no doubt that he will fail to do so if this lawsuit goes all the way to a verdict.

                Shiva Ayyadurai did not invent email. He misrepresents his accomplishments at best and lies about them at worst. His attempt to destroy Techdirt represents an attempt to financially bankrupt someone for telling a truth that he does not like. And if Shiva does not like me telling these truths…well, he can fuckin’ sue me, for all the good that will do.

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

                • icon
                  Ben (profile), 15 Aug 2017 @ 5:03am

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

                  Shiva Ayyadurai did not invent email. He misrepresents his accomplishments at best and lies about them at worst.

                  Oh he certainly misrepresents. He wrote software called EMAIL and submitted it for copyright protection. He didn't invent email by any stretch of the imagination, he just has a piece of paper from the US Government saying it recognizes that he wrote something called EMAIL; which he misrepresents as "proof" that he invented email.

                  What an idiot.

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

      • icon
        Bergman (profile), 16 Aug 2017 @ 1:07pm

        Re: Re:

        Yes, if Yahoo had paid the commenters to make those specific comments, then Yahoo would not be immune under Section 230.

        But...Yahoo did not pay them to make those comments or any others, so Yahoo is not liable.

        I'm not sure what you mean by paying Techdirt though. Are you referring to how some people (such as myself) have donated money to them? I'm not liable for their posts either, since I donated money to support a legal battle against a skeevy litigant, I am not their employer.

        It's not rocket science, AC.

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

        • identicon
          Anonymous Coward, 16 Aug 2017 @ 9:10pm

          Re: Re: Re:

          Thank you, yes of course you are right, it is not rocket science, but it can be a little tricky. It comes down to some ideas like "in the course of company business" and "compensation", which both can take many forms. But I get your point, you're probably more educated than me, if Techdirt paid them, then Techdirt is liable for their posts. That sounds right to me.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 14 Aug 2017 @ 5:50pm

    It shows that section 230 is overbroad. While it protects the service provider it also creates protection for the users as well which is clearly not its intention.

    Bad law. Thanks Wyden.

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

    • identicon
      Anonymous Coward, 14 Aug 2017 @ 7:09pm

      Re:

      You clearly don't understand what the intention was.

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

    • identicon
      Anonymous Coward, 14 Aug 2017 @ 8:15pm

      Re:

      Log back in, MyNameHere.

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

    • icon
      TKnarr (profile), 14 Aug 2017 @ 9:11pm

      Re:

      I don't think it does. What it does is require that the plaintiff go back to the judge and make a motion to compel discovery, get it granted and go back to the service provider with the judge's order. Which is almost certainly what Yahoo told him to do when they rejected his request.

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

      • icon
        MyNameHere (profile), 15 Aug 2017 @ 1:45pm

        Re: Re:

        You are correct. However, judges tend to give plaintiffs a very hard time when they are chasing "does" through a third party. From what I have seen and read here and on other places (such as Popehat) it seems that the judges tend to want more than "that nasty anonymous person said something bad'. The end effect is that Yahoo's section 230 protections end up as a legal wall between the plaintiff and any possible defendant.

        I think the plaintiff's lawyer is right here, but that the overbroad and one sided nature of section 230 creates a legal moat that protects everything inside of it. There is no simple provision to get around it or deal with it short of a full on court order, which is hard to get when dealing with does.

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

        • icon
          That One Guy (profile), 15 Aug 2017 @ 2:25pm

          Re: Re: Re:

          However, judges tend to give plaintiffs a very hard time when they are chasing "does" through a third party. From what I have seen and read here and on other places (such as Popehat) it seems that the judges tend to want more than "that nasty anonymous person said something bad'.

          How is that a problem? That strikes me as 'working as intended'. If someone is asking for a legally binding order to force someone to hand over personal details stripping the anonymity from someone the bar should most certainly be higher than 'someone said something bad'.

          Demonstrate that the statement(s) rises to actual defamation, that an actual law has likely been broken and I imagine a judge would have no problem issuing an order requiring that information be handed over so they can go after the person directly.

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

        • identicon
          Anonymous Coward, 20 Aug 2017 @ 10:53pm

          Re: Re: Re:

          What a surprise, the authoritarian wants carte blanche permission to go after anonymous people that hurt his feelings.

          Having to realize that the plaintiff's lawyer is right must give your brain such a disconnect you just can't resist putting a contrarian "but" at the end of conceding your agreement. Because being contrarian is intellectually stimulating!

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

    • icon
      Ninja (profile), 15 Aug 2017 @ 7:41am

      Re:

      Did the service provider (Yahoo) break any laws or ignored any court orders (without appealing)? If not then shut up.

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


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