In Revenge Porn Case, Worrisome Denial of Protection for GoDaddy
This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today – a platform where diverse content and free expression thrive – would not exist.
They say bad facts make bad law, and it appears we’re seeing an example of that maxim play out in the Texas courts, although the details aren’t exactly clear. A state judge there issued an opaque one-sentence ruling a few weeks back that denied a motion to dismiss claims against GoDaddy in what should have been an open-and-shut dismissal under Section 230 of the Communications Act, which immunizes online content hosts against liability for the content that their users post. Decisions undermining Section 230 are always worrisome because strong intermediary liability protections have enabled the vibrant expressive and economic growth of the Internet, so we’re glad to see that GoDaddy filed a motion last week seeking appeal of this dangerous decision.
The case involves the now-shuttered Texxxan.com, a ‘revenge porn’ site where users were encouraged to upload private nude photos of exes (overwhelmingly if not exclusively women) along with names and other contact details. This is unquestionably among the lowest of the low when it comes to objectionable content on the Internet, and it’s often such cases that lead judges – whether unfamiliar with Section 230, or driven to disregard it by a desire to punish the third parties’ behavior – to misapply Section 230’s liability protection, even where it clearly applies.
It’s impossible to glean the judge’s reasoning from his terse ruling, quoted here in full:
After reading the authorities presented to the court and considering the arguments of counsel, it is my opinion that the Motion to Dismiss should be denied at this time.
However, if we make the safe assumption that GoDaddy’s role here was no different than it is for the countless other websites it hosts on its servers, there can be little doubt that Section 230 should protect the company. As a general-purpose content host, GoDaddy is not one but two steps removed from the allegedly illegal content: it provides space to a website operator who in turn hosts user-uploaded content. So it makes no sense to hold the company responsible for the content’s creation – exactly what Section 230 immunity was designed to prevent. That immunity is one of the keys to openness, innovation, and free expression online precisely because it offers content hosts protection from liability for their users’ (or in this case their users’ users’) content.
Looking to the briefs in the case, the plaintiffs’ counsel argued that the complaint has alleged intentional misconduct on GoDaddy’s part, and that Section 230 does not preempt intentional tort claims. (To do this they overstate the holding of another Texas case that actually dodged this question – a dodge the plaintiffs interpret as a ruling against preemption.) But the truth is that all the claims brought by the plaintiffs treat GoDaddy as the speaker or publisher of the offending content – precisely what Section 230(c)(1)’s plain language bars – and nothing alleged in the complaint changes that. The plaintiffs also selectively cite the statute itself, arguing that state laws consistent with 230 are not preempted. But this ignores the converse (which happens to be the more important part of the paragraph they cite): that Section 230 explicitly does preempt inconsistent state law. And applying speaker or publisher liability for third-party content to a web host is directly inconsistent with the protection 230 provides. Thus the immunity should apply and GoDaddy’s motion should have been granted.
We’re very glad that GoDaddy has sought to appeal this decision, and hope that we will soon see a more enlightening – and enlightened – opinion from the appeals court.
