In February 1996, faced with increasing public concern about the availability of pornography on the internet, as well as recent court decisions that seem to deter efforts to filter out such content, Congress enacted the Communications Decency Act (“CDA”).  As part of the CDA, Congress granted immunity to internet service providers from liability for actions they took to help users block online content that a user found to be offensive or objectionable.  Congress further declared its goals in enacting the CDA, and its immunity provision, were “to encourage the development of technologies which maximize user control;” “to empower parents to restrict their children’s access to objectionable or inappropriate online content;” and “to preserve the vibrant and competitive free market that presently exists for the internet and other interactive computer services.”  In 2009, the Ninth Circuit decided the case, Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, which held that the immunity provisions of the CDA applied to computer software developers whose programs were intended to help users filter out or block objectionable material.  It is against the backdrop of the history of the CDA and its decision in the Zango case that the Ninth Circuit was called upon to explore the limits of the immunity provided by the CDA in the case, Enigma Software Group USA, LLC v. Malwarebytes, Inc., decided December 31, 2019.  In essence, the Ninth Circuit was called upon to determine whether the immunity provisions of the CDA, specifically section 230(c)(2), immunizes a software company whose blocking and filtering decisions are driven “by anti-competitive animus,” i.e., to deter users from accessing or using a competitor’s software products.
Continue Reading Is Your Competitor Objectionable? The Scope of Immunity Under the Communications Decency Act

by James Kachmar

On May 7, 2009, the Ninth Circuit issued its opinion in the case, Barnes v. Yahoo!, Inc. (No. 05-36189), in which it decided the issue of whether the Communications Decency Act of 1996 (“CDA”) protected Yahoo from a lawsuit where it allegedly promised to remove harmful material to the plaintiff from its website but failed to do so. 

In 2004, Cecilia Barnes broke up with her boyfriend and he responded by posting profiles of Ms. Barnes on a Yahoo website. The profiles contained nude photographs of Ms. Barnes and her ex-boyfriend that were apparently taken without her knowledge and the profiles included solicitations to engage in sexual intercourse. The ex-boyfriend also participated in discussions in Yahoo chat rooms in which he posed as Ms. Barnes and directed correspondents to the fraudulent profiles of Ms. Barnes he had created. In response to these profiles, several men contacted plaintiff, including visits to her office, all in the expectation of sex.Continue Reading Barnes v. Yahoo!, Inc.: Immunity Under The Communications Decency Act