11th Circuit Addresses § 230 Interactive Computer Service Immunity and Amazon Book Listing
July 18, 2006. The U.S. Court of Appeals (11thCir) issued its opinion [25 pages PDF] in Almeida v. Amazon.com, a case involving the interactive computer service immunity provision of 47 U.S.C. § 230. The District Court held that Amazon is immune under § 230 from Florida right of publicity and invasion of privacy claims for listing a book and picture in its web site.
The Court of Appeals affirmed, but solely on state law grounds. In a long but not always clear opinion, it wrote that whether § 230 provides immunity against claims for violation of state intellectual property laws, including the right of publicity, misappropriation, and invasion of privacy, remains an open question. It concluded that it was unnecessary for the District Court to apply § 230.
Background. Amazon sells books through a web site. It lists books, describes them, and provides pictures of the cover of books, among other things.
In 1991 fashion photographer Fabio Cabral obtained a signed authorization from the mother of Thais Almeida, who was then a minor, to take and publish photographs of Thais Almeida. Cabral took photographs, and included them in a book titled "Anjos Proibidos", which in English means "Forbidden Angels". This book included pictures of girls aged 10 through 17. Cabral and his publisher were prosecuted in Sao Paulo for publishing child pornography. However, both were acquitted.
In 2000 a second publisher published a second and revised edition. This edition placed Almeida's picture on the cover. This edition was offered for sale at Amazon's web site, which displayed the cover of the book.
Almeida demanded that Amazon pay damages to her. Amazon promptly removed its listing of the book from its web site. A Google search reveals that other web sites sell this book, review this book, and/or display a picture of the cover. See for example, Tuscon Weekly review.
Almeida filed a complaint in state court in Florida against Amazon alleging violation of the state of Florida's right of publicity statute, Fla. Stat. § 540.08, violation of the state of Florida's civil theft statute, Fla. Stat. § 772.11, and violation of the state of Florida's common law invasion of privacy doctrine.
Amazon removed the action to U.S. District Court (SDFl) based upon diversity of citizenship.
Notably, Amazon did not raise § 230 as a defense in the District Court.
Nevertheless, the District Court held that the right of publicity claim fails both because it is preempted by § 230, and because Almeida consented to the use of the photographs. The District Court held that the invasion of privacy claim is also preempted by § 230. The District Court dismissed the civil theft count because Almeida failed to establish felonious intent.
Almeida brought the present appeal.
Statute. The Congress enacted § 230 as part of the Communications Decency Act (CDA), which was made a part of the Telecommunications Act of 1996. While parts of the CDA have been held unconstitutional, § 230 has not. There is now a long string of cases applying § 230 to immunize internet service providers, interactive computer services, and others from liability for statements of others. See, section titled "Other § 230 Opinions", below.
47 U.S.C. § 230(c)(1) provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
§ 230(f)(2) provides that "The term ``interactive computer service´´ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions."
§ 230(e)(2) provides that "Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property."
§ 230(e)(3) provides, in part, that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."
Court of Appeals. Almeida argued that § 230(c)(1) does not immunize Amazon from the right of publicity claim because it is an intellectual property claim, and § 230(e)(2) excludes IP claims from § 230(c)(1) immunity.
The Court of Appeals wrote that "Whether the CDA immunizes an interactive service provider from a state law right of publicity claim is an issue of first impression for this Court." It added that "it is clear that ``any law pertaining to intellectual property´´ at least refers to the three traditional forms of intellectual property: copyright, patent, and trademark". (The Court cited various District Court opinions on this point.)
The Court noted that the U.S. District Court (CDCal) held in Perfect 10, Inc. v. CCBill, LLC, that "the CDA does not apply to California’s statutory and common law right of publicity claims". That case is reported at 340 F. Supp. 2d 1077 (2004).
But, in the end, the Court of Appeals concluded that whether § 230(e)(2) applies to IP law claims based upon state law remains an open question, and one that it would not resolve in this case. It concluded that "it was unnecessary for the district court to determine whether the CDA preempts Almeida's state law right of publicity claim, and we do not reach any of Almeida's challenges to the district court’s application of the CDA here."
The Court of Appeals went on to apply the language of the Florida right of publicity statute to the facts of this case. It concluded, following a lengthy analysis, that Amazon did not violate the state statute. Hence, it affirmed the District Court's judgment for Amazon on the right of publicity claim, but without also ruling on the application of § 230.
The District Court ruled that § 230 also immunizes Amazon on the common law privacy claim. The Court of Appeals wrote briefly in a footnote that the statutory right of publicity claim and the common law privacy claim may be plead separately, but are nevertheless "substantially identical". Hence, it wrote that "we do not address this claim separately from Almeida’s statutory right of publicity claim".
Finally, the Court of Appeals wrote that "Almeida contends that the CDA does not immunize Amazon because it is not an ``information content provider´´ as that term is defined by the CDA." (At page 7.) It then wrote that "Almeida does not dispute that Amazon is an ``interactive computer service,´´ but she does argue that Amazon is not entitled to immunity because it is an ``information content provider.´´" (At page 8.)
Other § 230 Opinions. The landmark case on § 230 is Zeran v. America Online, Inc., 958 F. Supp. 1124 (E.D.Va. 1997); affirmed by U.S. Court of Appeals, 4th Circuit, 129 F.2d 327 (1997); certiorari denied. The Courts applied § 230(c)(1) in holding AOL not liable for defamatory statement contained in posting in various AOL bulletin boards by an AOL subscriber. See, Court of Appeals opinion, and TLJ summary of Zeran v. AOL.
On March 24, 2004, the U.S. Court of Appeals (4thCir) issued its opinion [2 pages in PDF] in Noah v. AOL, affirming the opinion of the U.S. District Court (EDVa) that § 230 immunizes AOL from claims that it violated the Civil Rights Act of 1964 when it provided chat rooms in which subscribers mocked Noah's religious beliefs. See, story titled "4th Circuit Affirms That Section 230 Immunity Extends to Federal Civil Rights Action", in TLJ Daily E-Mail Alert No. 863, March 25, 2004.
On October 21, 2003, the U.S. Court of Appeals (7thCir) issued its opinion [12 pages in PDF] in Doe v. GTE. The District Court dismissed the complaint against a pair of interactive computer service providers (or ISPs) who had merely provided web hosting services to smut merchants who had surreptitiously videotaped the plaintiffs, and then sold the videotapes through their web sites. The Appeals Court affirmed. The Court also held that the ISPs are not liable under the Electronic Communications Privacy Act (ECPA) when their users sell videotapes that were made in violation of the ECPA. See, story titled "7th Circuit Interprets Section 230 Immunity and ECPA" in TLJ Daily E-Mail Alert No. 763, October 22, 2003.
On August 13, 2003, the U.S. Court of Appeals (9thCir) issued its opinion [12 pages in PDF] in Carafano v. Metrosplash.com, a case regarding application of Section 230 interactive computer service immunity to an online dating service. The District Court had held that the online dating service, which wrote the questionnaire to be used by persons who post their profiles, did not have § 230 immunity for a false posting, because it contributed to the content. The Appeals Court held that the service does have § 230 immunity. See, story titled "9th Circuit Applies Section 230 Immunity to Online Dating Service" in TLJ Daily E-Mail Alert No. 718, August 14, 2003.
On June 24, 2003, the U.S. Court of Appeals (9thCir) issued its opinion [41 pages in PDF] in Batzel v. Smith, a case involving the application of California's Anti-SLAPP statute to a suit alleging defamation on an internet listserv. The District Court denied a defendant's motion to dismiss under the Anti-SLAPP statute. The Appeals Court, relying upon the federal interactive computer service immunity provision of § 230(c)(1), vacated and remanded. See, story titled "9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator" in TLJ Daily E-Mail Alert No. 687, June 25, 2003. On December 3, 2003, the Appeals Court issued an order [16 pages in PDF] denying the petition for rehearing and the petition for rehearing en banc. See, story titled "9th Circuit Denies Petition for Rehearing En Banc in Section 230 Immunity Case" in TLJ Daily E-Mail Alert No. 792, December 4, 2003. Then, the Supreme Court denied certiorari. See, story titled "Supreme Court Denies Certiorari in Section 230 Immunity Case" in TLJ Daily E-Mail Alert No. 913, June 8, 2004.
The state courts of Florida also construed § 230. In Doe v. America Online, Inc., Trial Court Case No. CL 97-631 AE; Decision: 1997 WL 374223 (Fla. Cir. Ct. June 26, 1997), the Court applied 230(c)(1) in holding that AOL was not liable for statements made by an AOL subscriber in an AOL chatroom. Plaintiff appealed to Florida's Fourth District Court of Appeals. The appeals court affirmed the trial court decision. See, trial court opinion, and appeals court opinion.
See also, Blumenthal v. Drudge and AOL, in which AOL raised § 230(c)(1) as a defense to Sidney Blumenthal's claim that AOL was liable for alleged defamation of content provider Matt Drudge. The District Court granted AOL's Motion for Summary Judgment based on § 230. See, District Court opinion and TLJ summary of Blumenthal v. Drudge.
See also, Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000), and Green v. America Online, 318 F.3d 465 (3d Cir. 2003).
The present case is Thais Cardoso Almeida v. Amazon.com, Inc., U.S. Court of
Appeals for the 11th Circuit, App. Ct. Nos. 04–15341 and 04-15561, appeals from the U.S.
District Court for the Southern District of Florida, D.C. No. 04-20004–CV–MGC.
Judge Jane Restani wrote
the opinion of the Court of Appeals, in which Judge Tjoflat and Hull joined. Judge Restani
is Chief Judge of the U.S. Court of International
Trade who sat on this 11th Circuit panel by designation.