Decisive Section 230 Victory for GoDaddy in Revenge Porn Case

Late last week, a Texas appeals court handed down what should be an uncontroversial decision in part of the ongoing Texxxan.com litigation. The opinion reverses last year’s misguided decision declining to dismiss claims brought against GoDaddy on the basis of user-generated content on its customer’s site. I wrote about the case then, arguing that GoDaddy was clearly protected under Section 230 of the Communications Act, and the court was plainly mistaken and the order should be reversed. The appeals court agreed.

Texxxan.com was a ‘revenge porn’ website that publicly displayed user-uploaded nude images, typically, it is alleged, without the consent of the person depicted. A group of victims had sought to hold GoDaddy, Texxxan.com’s former domain registrar and hosting provider, liable for the content on the site, alongside the site operators themselves. Given the content at issue, the suit raises challenging issues, but with respect to GoDaddy’s role as a hosting provider, it’s fairly straightforward. As strong believers in personal privacy, we at CDT view the posting of nonconsensual pornography as a serious issue. But responsibility for this kind of privacy invasion needs to lie with the malicious actors themselves, not with web hosts whose services those actors happen to use.

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.”

In the continuing debate over how to restrict the dissemination of such non-consensually posted images, the role of the operators of such websites is a major focal point. Some operators may actively engage in illegal conduct (such as conspiracy and hacking) to generate content for their sites (as the notorious Hunter Moore is alleged to have done). But at the other end of the spectrum are general-purpose content platforms such as Facebook and Tumblr that allow users to upload a wide variety of content, some of which may be hateful, offensive, or illegal.

Section 230 draws a bright line between operators of websites who simply host third-party content and those who actively participate in the creation of illegal content, though this line is continually the subject of heated debate. CDT favors strong protections from liability for operators of user-generated content sites, as this protection plays a crucial role in supporting an open and robust environment for speech online. Accordingly, we believe there ought to be a very high bar for determining when a host has actively participated in content’s creation.

But all this debate aside, one thing is abundantly clear: upstream content hosts that play no role in generating content cannot, and should not, be treated as publishers of the content their users post.

Yesterday’s opinion may not be the last word on the issue. The plaintiffs’ attorney has said he will seek review by the Texas Supreme Court. In CDT’s view, the case for 230 protecting GoDaddy is an easy one and yesterday’s ruling is strong, well-reasoned, and well-supported. Let’s hope the Texas Supreme Court agrees.

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