Forwarding Offensive Articles Along With Additional Offensive Comments Falls Outside Protection of CDA Section 230

John Doe Anti-Terrorism Officer v. City of New York, No. 06-cv-13738 (S.D.N.Y. Feb. 6, 2008), involves the sending of offensive articles by e-mail, to which the sender allegedly added his own offensive comments.

The case involves hostile work environment claims brought by a New York City law enforcement officer assigned to a unit that identifies terrorism threats to the City. The officer is an Arab-American and a Muslim. The defendant Tefft is a counterterrorism adviser to the Department who sent periodic e-mail briefings to members of the plaintiff's unit. The plaintiff alleges that those e-mail briefings included third-party content containing statements derogatory of Muslims, and that Tefft added his own derogatory comments as well.

The opinion refers to the third-party content forwarded by Tefft in his e-mail briefings as "articles," without explanation as to whether the articles were print material gathered by Tefft and converted to electronic form, or whether they were articles in electronic form that were forwarded to Tefft by third parties. The difference between these two scenarios ordinarily is important for CDA Section 230 analysis.

Tefft moved to dismiss the complaint, claiming CDA Section 230 immunity. The District Court denied the motion, in a ruling that is less than fine-grained, so far as the analysis of the Section 230 immunity claim is concerned. In summary, the District Court ruled that Tefft's addition of his own objectionable comments to the objectionable articles brought him outside the protection of CDA Section 230:

    However, Tefft’s attempt to seek shelter under this statute for the emails he sent as an individual is misguided. The CDA provision he cites was intended to protect interactive computer service providers and websites that host third-party content on their servers or sites. See Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D. D.C. 1998). Tefft’s argument that his emails were akin to a blog, website, or listserv because he forwarded third-party content that he found relevant or interesting also fails. When Tefft attached his own commentary to his listserv, he ceased to be a passive host of third-party information. See id. at 50 ("Section 230(c)(1) would not immunize [defendants] with respect to any information [they] developed or created entirely by [themselves]."). For example, the plaintiff alleges that Tefft forwarded an article entitled "Is the Arabic Language ‘Perfect’ or ‘Backwards’?" With it, Tefft added: "the language may not be backwards but the people speaking it are." Compl. ¶ 53(l). When Tefft added his own allegedly tortious speech to the third-party content he forwarded, he fell out of the statute’s protections. See id.

    Tefft’s argument also fails because the statute is clearly not meant to immunize his conduct from liability. The portion of the statute that includes "users[s] of interactive computer services" cannot be interpreted to apply to Tefft’s conduct. Doing so would exempt virtually all Internet use from liability, expanding the statute’s reach beyond that which Congress intended. See Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997)(noting that Congress intended the statute to confer immunity on service providers that act as publishers and host third-party content, while maintaining the ability "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer"). Thus, the CDA does not compel this Court to dismiss Plaintiff’s claims.

The court's end result is correct, because CDA Section 230 wasn't intended to immunize parties from liability for their own statements. But some of the court's analysis in reaching that result bears comment.

To the extent that the ruling suggests that Section 230 immunity is limited to situations involving the hosting of content on servers and Web sites, it is incorrect. Claims of immunity under Section 230 of the Communications Decency Act most often are raised in situations involving Web site postings, but they can be raised in situations involving other Internet communications media. A notable example in that regard is Batzel v. Smith , 333 F.3d 1018 (9th Cir. 2003), where the operator of an e-mail newsletter asserted CDA immunity for statements made in an e-mail authored by a third party and included in the e-mail newsletter. See also Delfino v. Agilent, 52 Cal.Rptr. 3d 376 (Cal. Ct. App., 6th Dist. 2006) (employer immune under Section 230 for e-mails sent by employee).

The District Court also failed to treat the issue of whether the articles forwarded by Tefft constituted information "provided by another information content provider." The discussion in Batzel v. Smith on this point is informative, and illustrates why the source of the articles in John Doe Anti-Terrorism Officer v. City of New York (i.e., whether they were "provided" to Tefft by "another information content provider" or whether he simply collected them and copied them himself for forwarding) is an important fact:

    Critically, however, § 230 limits immunity to information "provided by another information content provider." § 230(c)(1). An "information content provider" is defined by the statute to mean "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." § 230(f)(3). The reference to "another information content provider" (emphasis added) distinguishes the circumstance in which the interactive computer service itself meets the definition of "information content provider" with respect to the information in question.

    ***
    The structure and purpose of § 230(c)(1) indicate that the immunity applies only with regard to third-party information provided for use on the Internet or another interactive computer service. As we have seen, the section is concerned with providing special immunity for individuals who would otherwise be publishers or speakers, because of Congress’s concern with assuring a free market in ideas and information on the Internet. If information is provided to those individuals in a capacity unrelated to their function as a provider or user of interactive computer services, then there is no reason to protect them with the special statutory immunity. So, if, for example, an individual who happens to operate a website receives a defamatory "snail mail" letter from an old friend, the website operator cannot be said to have been "provided" the information in his capacity as a website service.[] Section 230(c)(1) supplies immunity for only individuals or entities acting as "provider[s]" or "user[s]" of an "interactive computer service," and therefore does not apply when it is not "provided" to such persons in their roles as providers or users.

Batzel v. Smith, slip op. at 8450 & 8453.