By: Douglas DeBettencourt
It is no surprise that Section 230 of the Communications Decency Act has made its way back into the headlines once again. There have been many debates about what protections Section 230 provides to big tech companies and the extent of these protections. But what about big online retailers that sell third-party products? Does Section 230 protect them too? Section 230 of the Communications Decency Act was enacted in 1996 to protect online companies from liability that could arise from what third parties post on their platforms and has traditionally been applied to internet companies such as Facebook and Twitter. According to a District Court in New York, Section 230 also applies to online retailers like Walmart, Amazon, and Ulta, providing them with liability as well. This is an expansive new take on Section 230 and one that could have major impacts on the scope and applicability of Section 230 in the future.
Section 230 of the Communications Decency Act was enacted in 1996 to protect online companies from liability that could arise from what third parties post on their platforms. Legislators felt this was important to continue the development of the internet services and related technologies and to preserve the vibrant and competitive free market on the internet. The applicable part of Section 230 for this case states that “[n]o 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.” Although this has traditionally been applied to internet companies, a district court has recently applied it to online retailers as well granting them liability from third-party content.
In the Southern District of New York, Patty Ratermann, who is a model, sued six companies claiming that they had violated her right to privacy through online advertisements by using her image without her permission. Ratermann works with various companies in fashion and signed a single-use license with QuickFrame, giving QuickFrame the right to use her likeness on Instagram only. Ratermann later discovered that her likeness was being used to advertise Pierre Fabre’s Avene products on the Avene website and on other retailers’ websites like Amazon, Walmart, and Ulta. These three companies, Amazon, Walmart, and Ulta, filed a motion to dismiss, claiming immunity under Section 230 of the Communications Decency Act. The Court agreed and held that under Section 230, Amazon, Walmart, and Ulta were not liable for the third-party content on their websites featuring Ratermann’s face because it was Pierre Fabre and QuickFrame that actually produced those images, not the online retailers. The Court noted that a key to this holding was the fact that this claim was rooted in privacy, and not intellectual property, which would have exempted the protections of Section 230.
This new ruling suggests that Section 230 shields online retailers, which is a big win for tech companies in general, as Section 230 has traditionally been applied to other types of internet companies like those providing social media platforms. Although this is a new application of Section 230, it seems to be backed by the language of Section 230 and the legislative intent. In order for a defendant to be shielded from liability under Section 230, it must meet three criteria: (1) the company provides or uses an interactive computer service, (2) the plaintiff seeks to hold the defendant liable as the publisher or speaker of the information, and (3) the plaintiff sues the company for information provided by a third party. With a new Section 230 case on its way to the Supreme Court, the question becomes whether there is any merit to this new application.
The three elements for a defendant to be shielded from liability under Section 230 seem to be met for Amazon, Walmart, and Ulta. First, these companies seem to be interactive computer services. An ‘interactive computer service’ is defined 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. The Second Circuit previously held that a website that is a “passive host of third party content” qualifies as an interactive computer service and would thus satisfy the first prong. Amazon, Walmart, and Ulta clearly seem to meet this definition because the complaint indicates that Ratermann’s likeness was used on websites selling products through these bigger retailers.
The second element is whether Ratermann’s claim treats Amazon, Walmart, and Ulta as the publisher or speaker of the allegedly illegal information. Looking at the ordinary meaning of “publisher” since it is not defined in Section 230, the Second Circuit defines it as “one that makes public.” Although Ratermann claims she seeks to hold Amazon, Walmart, and Ulta liable not for publishing content, but for exploiting her likeness for advertising purposes and commercial gain, this distinction is likely meaningless from a legal standpoint. It seems that Ratermann’s claims are based on these defendants’ allegedly unlawful dissemination of her likeness, therefore effectively accusing them of being publishers and thus satisfying the second element.
The third element is whether Ratermann’s claim is based on information provided by a third party “information content provider.” Ratermann does not even contest this because she only accuses Amazon, Walmart, and Ulta of exploiting her “likeness,” but the “likeness” was content obtained from other third party companies.
Although this is new territory for Section 230, it seems that the Southern District of New York correctly applied immunity to large retailers like Amazon, Walmart, and Ulta. Congress enacted Section 230 to promote the continued development of the internet and internet-related technologies, as well as to preserve the free market by granting immunity and avoiding intrusive government regulations. Although some may find it frustrating, this holding is backed by the language of Section 230 and stands for these same principles, ensuring that technology and the market can continue to grow.
Student Bio: Douglas DeBettencourt is a second-year day student at Suffolk University Law School. He serves as a staff member for the Journal of High Technology Law, a paralegal at Drago & Toscano, LLP, and President of Suffolk University Law School’s Chapter of the Federalist Society. Douglas received a Master of Science Degree and Bachelor of Science Degree in Criminology and Criminal Justice with a minor in Mathematics from the University of Tampa.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
