Chopping Away At The CDA

The Communications Decency Act has been a God send for providers of an interactive computer service.  The federal law says that those providers aren’t considered publisher of content supplied by third parties.  And those providers don’t lose that protection even if they choose to edit or remove the content.

Most courts have interpreted the statute broadly – applying the law’s protection even when the third party content is really offensive.    But a couple of California based courts may be cutting the protection back. The California Supreme Court recently let stand a California appellate court decision where the court denied a motion to dismiss filed by a software developer who’d gotten included in a product liability case involving a  medication called lamotrigine. According to the suit, the software developer provided a program to GlaxoSmithKline (the drug’s manufacturer) which allowed GSK to distribute abbreviated drug monographs.  According to the suit, the abbreviated monograph didn’t fully disclose the side effects of the medication, and the plaintiff suffered permanent blindness after taking the medication. 

PDX, the software developer argued that the CDA shielded it from liability. It didn’t prepare the truncated monographs, nor did it decide to post the shorter version. It just provided the technology that allowed GSK to publish the shorter version. According to PDX, it didn’t have anything to do with creating the content. 

But the California appellate court (and apparently the California Supreme Court) considered this situation different from the more typical scenario – where someone writes content and posts it on the host’s site. In the court’s view, providing GSK with the means to shorten the content made PDX a “content  developer” to an extent where the CDA didn’t apply. 

And to further erode the CDA protection, the United States Court of Appeals for the Ninth Circuit (located in California) recently reversed a trail court’s decision to dismiss a negligence claim based on the CDA. In Doe v. Internet Brands a woman claimed that Internet Brand failed to provide adequate warnings to users of its Web site called “modelmayhem.com.”  According to the Doe plaintiff, the failure to warn led to her rape. 

The facts are brutal. According to the court,  “Model Mayhem is a networking website, found at modelmayhem.com, for people in the modeling industry. Plaintiff Jane Doe, an aspiring model who posted information about herself on the website, alleges that two rapists used the website to lure her to a fake audition, where they drugged her, raped her, and recorded her for a pornographic video.” The plaintiff claimed Internet Brands knew about the rapists, but did not warn her or any other users. 

The Ninth Circuit reversed the trial court’s dismissal order because it found that Doe was not asking the court to hold Internet Brands liable for any specific post the rapists put on the Web site. Rather, Doe’s claim was based on the notion that Internet Brands failed to warn about the scheme generally, even though evidence suggested it knew what was happening. 

There is an old cliché about hard facts making bad law. These two cases may be the very illustration of that point.