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.