Schneider v. Amazon.com, Inc., No. 46791-3-I, (Slip Op., September 17, 2001).
Schneider v. Amazon.com, Inc., No. 46791-3-I, (Slip Op., September 17, 2001).
Sept. 2001 SCHNEIDER v. AMAZON.COM, INC. 1
Cause No. 46791-3-I
[No. 46791-3-I. Division One. September 17, 2001.]
JEROME SCHNEIDER, an individual, ) No. 46791-3-I
)
Appellant, ) DIVISION ONE
)
v. )
)
AMAZON.COM, INC., a Washington ) PUBLISHED OPINION
corporation; and JOHN DOES and )
JANE DOES I-X, and the marital )
communities comprised thereof, )
) FILED: September 17, 2001
Respondents. )
)
Trial Court: Superior Court, King County, No. 00-2-03998-1.SEA,
Robert H. Alsdorf, J., March 31, 2000.
Myers & Parker, by Michael D. Meyers, for appellant.
Perkins Coie LP, by Elizabeth L. McDougall-Tural, for respondents.
ELLINGTON, J. - The Communications Decency Act immunizes Amazon.com,
Inc. from liability for allegedly defamatory comments posted by third
parties on Amazon's web site. We therefore affirm dismissal of all
claims against Amazon.
FACTS
Jerome Schneider wrote several books relating to taxation and asset
protection. The books are for sale at the web site of Amazon.com, Inc.
(Amazon). In addition to enabling purchases, Amazon's web site provides a
forum for visitors to air their opinions about books. Amazon sets the
following guidelines for comments:
While we appreciate your comments, we respectfully request
that you refrain from including the following in your review:
- Profanity, obscenities, or spiteful remarks.
- Time-sensitive material (i.e., promotional tours, seminars,
lectures, etc.).
- Single-word reviews. We want to know why you liked or
disliked the book.
- Comments focusing solely on the author.
- No spoilers! Please don't reveal crucial plot elements.
- Phone numbers, mail addresses, URLs.
- Availability, price, or alternative ordering/shipping information. /1
Visitors to Amazon's web site are informed that "Any review in violation
of these guidelines may not be posted." /2 A visitor who submits a review
grants Amazon a non-exclusive royalty-free right to use the review.
Amazon posted visitors' comments about Schneider and his books. The
comments were negative; one alleged Schneider was a felon. Schneider's
employee complained. Amazon's representative agreed that one or more of
the postings violated the guidelines and should be removed, and promised
to take steps to remove the postings within one to two business days.
Two days later, the posting had not been removed.
Schneider filed an action for defamation and tortious interference
with a business expectancy, naming Amazon and multiple "John and Jane
Does." Amazon moved to dismiss under CR 12(b)(6) on grounds it was
immune from liability under the Communications Decency Act of 1996, 47
U.S.C. § 230. Schneider then amended his complaint, deleting the
defamation claim and alleging negligent misrepresentation,
tortious interference, and breach of contract. The amended complaint
alleges the anonymous postings contained "false, defamatory and/or
scurrilous comments regarding Mr. Schneider and his business," and that
Amazon exercises editorial discretion and decision-making authority over
the posting of comments at its site. /3
Amazon filed a second motion to dismiss on the same grounds. The trial
court granted the motion and dismissed all claims against Amazon with
prejudice. Schneider filed a motion for reconsideration requesting
permission to amend the complaint to plead foreign law, which the trial
court denied.
DISCUSSION
This court reviews a CR 12(b)(6) dismissal de novo. /4 Dismissal is
appropriate only if it appears beyond a reasonable doubt that the
complaint alleges no facts that would justify recovery. /5 The
plaintiff's allegations and any reasonable inferences therefrom are
accepted as true. /6 "If a plaintiff can prove any set of facts
consistent with the complaint that would entitle him or her to relief,
including hypothetical facts not in the formal record, then the claim
should not be dismissed." /7
Immunity under the Communications Decency Act
Under the Communications Decency Act of 1996 (CDA), interactive computer
service providers are immune from publisher liability. /8 The statute
provides in relevant part:
(c) Protection for "good samaritan" blocking and screening of
offensive material
(1) Treatment of publisher or speaker
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.
(2) Civil liability
No provider or user of an interactive computer
service shall be held liable on account of-
(A) any action voluntarily taken in good faith to
restrict access to or availability of material that the
provider or user considers to be obscene, lewd,
lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is
constitutionally protected; or
(B) any action taken to enable or make available to
information content providers or others the technical
means to restrict access to material described in
paragraph (1). /9
Three elements are thus required for § 230 immunity: the defendant must be
a provider or user of an "interactive computer service"; the asserted
claims must treat the defendant as a publisher or speaker of information;
and the information must be provided by another "information content
provider." Schneider argues none of these elements was satisfied here.
1. Amazon Is a Provider or User of Interactive Computer Services
The statute defines "interactive computer service" as "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." /10 Thus, to qualify for immunity, a defendant must be a
provider or user of an information service or system that "enables
computer access by multiple users to a computer server." Schneider argues
§ 230 does not extend immunity to web site hosts who do not enable access
to the Internet.
Internet service providers (ISP) are recognized as § 230 providers of
interactive computer services. The seminal decision is Zeran v.
America Online, Inc. /11 There, a third party posted a message on an
America Online (AOL) bulletin board, advertising t-shirts with tasteless
slogans related to the bombing of the Oklahoma City federal building.
Those interested in purchasing the t-shirts were instructed to call the
phone number Zeran used for personal and business purposes. Zeran received
a staggering number of phone calls, consisting of angry and derogatory
messages as well as death threats. Zeran contacted AOL several times and
received assurances that the message would be removed and the responsible
individual's account closed. Nevertheless, several more messages were
posted on AOL, and the volume of death threats increased.
Zeran brought a negligence suit against AOL, seeking to hold AOL
liable for the defamatory speech initiated by the third party. The Tenth
Circuit affirmed dismissal of Zeran's complaint, holding "§ 230 forbids
the imposition of publisher liability on a service provider for the
exercise of its editorial and self-regulatory functions." /12
We find no case addressing application of the statute to interactive web
site operators. /13 But Amazon's web site postings appear
indistinguishable from AOL's message board for § 230 purposes. Schneider
points out that web site operators do not provide access to the Internet,
but this is irrelevant. Under the statutory definition, access providers
are only a subclass of the broader definition of interactive service
providers entitled to immunity ("provides or enables computer access by
multiple users to a computer server, including specifically a service . .
. that provides access" /14). According to Schneider's complaint, Amazon's
web site enables visitors to the site to comment about authors and their
work, thus providing an information service that necessarily enables
access by multiple users to a server. This brings Amazon squarely within
the definition.
Our holding derives from the plain language of the statute. It is
supported by legislative history and by findings and policy statement in
the statute:
(a) Findings
The Congress finds the following:
(1) The rapidly developing array of Internet and other
interactive computer services available to individual
Americans represent an extraordinary advance in the
availability of educational and informational resources to
our citizens.
(2) These services offer users a great degree of control
over the information that they receive, as well as the
potential for even greater control in the future as
technology develops.
(3) The Internet and other interactive computer services
offer a forum for a true diversity of political discourse,
unique opportunities for cultural development, and myriad
avenues for intellectual activity.
(4) The Internet and other interactive computer services
have flourished, to the benefit of all Americans, with a
minimum of government regulation.
(5) Increasingly Americans are relying on interactive
media for a variety of political, educational, cultural,
and entertainment services.
(b) It is the policy of the United States-
(1) to promote the continued development of the Internet
and other interactive computer services and other
interactive media;
(2) to preserve the vibrant and competitive free market
that presently exists for the Internet and other
interactive computer services, unfettered by Federal or
State regulation;
(3) to encourage the development of technologies which
maximize user control over what information is received by
individuals, families, and schools who use the Internet
and other interactive computer services;
(4) to remove disincentives for the development and
utilization of blocking and filtering technologies that
empower parents to restrict their children's access to
objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal
laws to deter and punish trafficking in obscenity,
stalking, and harassment by means of computer. /15
Congress passed § 230 "to remove disincentives to self-regulation"
created by a New York state court decision holding an ISP strictly liable
for unidentified third parties' defamatory comments posted on its
bulletin board. /16 As the Tenth Circuit explained in Zeran,
Congress deliberately chose not to deter harmful online speech by means
of civil liability on "companies that serve as intermediaries for other
parties' potentially injurious messages." /17 Congress intended to
encourage self-regulation, /18 and immunity is the form of that
encouragement. We can discern no difference between web site operators
and ISPs in the degree to which immunity will encourage editorial
decisions that will reduce the volume of offensive material on the
Internet.
Under the plain language of the statute, Amazon is a provider of
interactive computer services for purposes of § 230(f)(2).
2. Schneider's Claims Treat Amazon as a Publisher
The next question is whether Schneider's complaint treats Amazon as a
publisher. Section 230 "precludes courts from entertaining claims that
would place a computer service provider in a publisher's role. Thus,
lawsuits seeking to hold a service provider liable for its exercise of a
publisher's traditional editorial functions-such as deciding whether to
publish, withdraw, postpone or alter content-are barred." /19 Publication
includes "the failure to remove [content] . . . when first communicated by
another party." /20 In his amended complaint, Schneider alleged that
"Amazon.com exercises editorial discretion and decision-making authority
over the posting of comments at its site." /21 Schneider's complaint thus
treats Amazon as a publisher.
Schneider argues, however, that the statute bars only tort claims,
and that his claims sound in contract, not tort. Schneider asserts he
"does not seek to hold Amazon liable for initially posting the defamatory
comments and reviews submitted by third parties-he seeks to recover the
damages which flowed from Amazon's misrepresentations and breach [of] its
agreement following the postings," /22 because Amazon promised to remove
the offensive posting, failed to do so, and reposted the reviews rather
than deleting them.
We reject this analysis. First, assuming Schneider could prove
existence of an enforceable promise to remove the comments, Schneider's
claim is based entirely on the purported breach-failure to remove the
posting-which is an exercise of editorial discretion. This is the
activity the statute seeks to protect. More important, however, is the
fact that § 230 does not limit its grant of immunity to tort claims: "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." /23 Were the
statute not clear enough, legislative history demonstrates Congress
intended to extend immunity to all civil claims: "This section provides
`Good Samaritan' protections from civil liability for providers
or users of an interactive computer service for actions to restrict or to
enable restriction of access to objectionable online material." /24
Schneider's argument rests mainly upon his reading of the Fourth
Circuit's opinion in Zeran, but that court did not discuss
application of the statute to contract claims, and cannot be fairly read
as implying, much less holding, that § 230 immunity is limited to tort
claims. Finally, courts that have considered the question have held §
230 provides immunity to civil claims generally. /25
Schneider's amended complaint treats Amazon as a publisher within
the scope of § 230.
3. Amazon Is Not the Information Content Provider
Immunity extends only when the content is not provided by the service
entity: "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." /26 An information content provider is
"any person or entity that is responsible, in whole or in part, for the
creation or development of information provided through the Internet or
any other interactive computer service." /27
Schneider does not claim Amazon created the information about him.
Rather, he argues that because Amazon had the right to edit the posting,
and because Amazon claims licensing rights in the posted material, /28
Amazon in effect became the content provider.
Both of Schneider's arguments have been rejected. In Ben Ezra,
Weinstein, and Co. v. America Online, Inc. /29 the Tenth Circuit
considered whether AOL's editing of content rendered it an information
content provider. AOL provided access to allegedly inaccurate
information regarding Ben Ezra's publicly-traded stock. The information
came from an independent stock quote provider and a software provider.
AOL deleted and altered some of the information, and Ben Ezra alleged
that AOL worked so closely with the independent parties in creating and
developing the information that AOL was an information content provider.
The Tenth Circuit disagreed: "By deleting the allegedly inaccurate stock
quotation information, Defendant was simply engaging in the editorial
functions Congress sought to protect." /30
We agree with the circuit court's analysis. And if actual editing
does not create liability, the mere right to edit can hardly do so;
Schneider does not allege Amazon actually altered or edited the comments.
Schneider's licensing rights argument was rejected in Blumenthal
v. Drudge. /31 Blumenthal sued Drudge and AOL for allegedly
defamatory statements made by Drudge in an electronic publication
available to AOL subscribers under a licensing agreement. The licensing
agreement provided that Drudge would "create, edit, update, and otherwise
manage the content of the publication," and AOL could "remove content
that AOL reasonably determine[s] to violate AOL's then standard terms of
service." /32 Drudge emailed each new edition to AOL, who then made it
available to AOL subscribers. The Blumenthal court held the
statute mandates immunity:
Congress has made a different policy choice by providing
immunity even where the interactive service provider has an
active, even aggressive role in making available content
prepared by others. In some sort of quid pro quo
arrangement with the service provider community, Congress has
conferred immunity from tort liability as an incentive to
Internet service providers to self-police the Internet for
obscenity and other offensive material, even where the self-
policing is unsuccessful or not even attempted. /33
We agree with the Blumenthal court as to the scope of the
protection granted by § 230. Schneider attempts to distinguish
Blumenthal, arguing Amazon's licensing rights are "significantly
broader and deeper than AOL's" licensing rights. /34 But this is
irrelevant. There is no allegation that Amazon was responsible for
creating or developing the negative comments. Amazon was not a content
provider under the allegations in Schneider's complaint.
Because all three elements for § 230 immunity are satisfied, the
trial court properly concluded § 230 bars Schneider's claims against
Amazon. /35
Affirmed.
BECKER, A.C.J., and KENNEDY, J., concur.
_______________
1 Clerk's Papers at 59.
2 Clerk's Papers at 59.
3 Clerk's Papers at 28.
4 Reid v. Pierce County, 136 Wn.2d 195, 200-01, 961 P.2d
333 (1998).
5 Reid, 136 Wn.2d at 200-01.
6 Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68,
122, 11 P.3d 726 (2000).
7 Rodriguez v. Perez, 99 Wn. App. 439, 442, 994 P.2d 874,
review denied, 141 Wn.2d 1020 (2000).
8 Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir.
1997), cert. denied, 524 U.S. 937 (1998).
9 47 U.S.C. § 230(c)(1), (2) (emphasis added).
10 47 U.S.C. § 230(f)(2).
11 129 F.3d 327 (4th Cir. 1997).
12 Zeran, 129 F.3d at 331.
13 In the only § 230 immunity decision we find involving a web site
operator, eBay's status as an interactive computer service provider was
not disputed. See Stoner v. eBay, Inc., 2000 WL 1705637, at *1
(Cal. Super. 2000) (unpublished).
14 47 U.S.C. § 230(f)(2).
15 47 U.S.C. § 230(a)-(b).
16 Zeran, 129 F.3d at 331 (discussing Stratton Oakmont,
Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24,
1995)).
17 Zeran, 129 F.3d at 330-31.
18 Zeran, 129 F.3d at 331.
19 Zeran, 129 F.3d at 330.
20 Zeran, 129 F.3d at 332.
21 Clerk's Papers at 29.
22 App. Br. at 17-18.
23 47 U.S.C. § 230(e)(3).
24 142 Cong. Rec. H1078-03, 1103 (1996).
25 See Kathleen R. v. City of Livermore, 104 Cal.Rptr.2d 772,
780-81 (Cal. App. 2001) (rejecting argument that § 230 immunity was
limited to tort claims, holding immunity extends to a taxpayer's action
for declaratory and injunctive relief); see also Jane Doe One v.
Oliver, 755 A.2d 1000,1003-04 (Conn. Sup. Ct. 2000) (§ 230 immunity
grounds for dismissal of breach of contract claim against AOL).
26 47 U.S.C. § 230(c)(1).
27 47 U.S.C. § 230(f)(3). In an unpublished decision, one court
refused to characterize web site hosts (entities that provide space on
their servers to third parties for building web sites) as "information
content providers." See Does v. Franco Prod., 2000 WL
816779, at *4-5 (N.D. Ill. 2000).
28 Amazon advises potential book reviewers:
Amazon.com enables visitors to its site to post reviews of
and comments on products featured on the site. If you post
reviews or comments on the site, you grant Amazon.com and its
affiliates a non-exclusive, royalty-free, perpetual,
irrevocable, and fully sublicensable right to use, reproduce,
modify, adapt, publish, translate, create derivative works
from, distribute, and display such reviews and comments
throughout the world in any media. You also grant
Amazon.com and its affiliates and the sublicensees the right to
use the name that you submit with any review or comment, if
any, in connection with such review or comment.
Clerk's Papers at 59-60.
29 206 F.3d 980 (10th Cir.), cert denied, 531 U.S. 824
(2000).
30 Ben Ezra, 206 F.3d at 986.
31 992 F. Supp. 44 (D.D.C. 1998).
32 Blumenthal, 992 F. Supp. at 47 (internal quotations
omitted).
33 Blumenthal, 992 F. Supp. at 52.
34 App. Br. at 20.
35 Schneider claims the trial court erred in failing to permit
reconsideration and the filing of a third amended complaint, for purposes
of pleading foreign law. Schneider cited no authority and devoted no
argument to this issue in his brief, merely asserting that "Amazon is not
shielded by the Consumer Decency Act in Canada . . . [or] the United
Kingdom." App. Br. at 22. We therefore decline to consider this issue.
See RAP 10.3(a)(5); Mannington Carpets, Inc. v.
Hazelrigg, 94 Wn. App. 899, 910, 973 P.2d 1103 (1999) (refusing to
review denial of motion for reconsideration where appellant failed to
present authority or argument in support of claim). We also reject
Schneider's reply brief, which was due Nov. 26, 2000 but was filed April
17, 2001, three days before oral argument. See RAP 10.2(d).