Word of God Fellowship, Inc. v. Vimeo, Inc.

205 A.D.3d 23

166 N.Y.S.3d 3

WORD OF GOD FELLOWSHIP, INC. doing business as Daystar Television Network, Plaintiff-Appellant,

v.VIMEO, INC., et al., Defendants-Respondents.

Appeal No. 15460

Index No. 653735/20

Case No. 2021-00793

Supreme Court, Appellate Division, First Department, New York.

ENTERED March 22, 2022

Day Pitney LLP, New York (Alfred W.J. Marks and Gregory R. Bruno of counsel) and Kelly Hart & Hallman LLP, Fort Worth, TX (Michael D. Anderson and Caleb B. Bulls, of the bar of the State of Texas, admitted pro hac vice of counsel), for appellant.

Vimeo, Inc., New York (Michael A. Cheah and Neel Chopra of counsel), and Cuti Hecker Wang LLP, New York (John R. Cuti and Alexander Goldenberg of counsel), for respondents.

Barbara R. Kapnick, J.P., Ellen Gesmer, Jeffrey K. Oing, Anil C. Singh, Saliann Scarpulla, JJ.

SINGH, J.

This appeal concerns whether a video-hosting service may be held liable for its decision to remove videos that it determines violate its terms of service. Defendant Vimeo, Inc. prohibits users from posting videos that make false or misleading claims about vaccine safety. It removed five videos, posted by a commercial user, because the videos claimed that childhood vaccination leads to autism. The user sued, claiming that Vimeo had breached the parties’ contract. The motion court held that liability was precluded by section 230 of the Communications Decency Act. We agree. Section 230 prevents lawsuits against Internet service providers for their good-faith decisions to remove content that they consider objectionable. If service providers had to justify those decisions in court, or if plaintiffs could circumvent immunity through unsupported accusations of bad faith, section 230 would be a dead letter. This is as true for commercial users as for any other plaintiff. Therefore, we affirm dismissal of the complaint.

Facts

Plaintiff Daystar Television Network states that it is "an evangelical Christian-based television network." It alleges that Vimeo "is a video hosting, sharing and services platform," and that defendant VHX Corporation is a wholly-owned subsidiary of Vimeo. Daystar streamed videos to its website and contracted with defendants to host those videos. Specifically, in October 2019, Daystar purchased a two-year subscription to defendants’ enterprise service, which defendants called their OTT (over-the-top) service. This subscription enabled Daystar to upload up to 2000 hours of video, per year, to be hosted by Vimeo and VHX. Daystar would take full advantage of this capacity, uploading over 3000 videos with an average length of an hour. In September 2020, it even purchased additional bandwidth.

The terms of the October 2019 purchase order incorporated Vimeo's Enterprise Terms. The Enterprise Terms, in turn, incorporated the online terms applicable to the OTT subscription service. Both the Enterprise Terms and the incorporated online terms authorized Vimeo to remove videos that failed to comply with its Acceptable Use Policy. Among potential violations of this Policy was "any content" that "[m]akes false or misleading claims about vaccination safety."¹ Vimeo had publicly announced the introduction of these terms in a blog post on June 26, 2019.

Among the thousands of videos that Daystar uploaded to defendants’ platform were six claiming a causal link between vaccines and childhood autism. On July 17, 2020, Vimeo wrote to Daystar that these videos violated Vimeo's Acceptable Use Policy. Daystar alleges that, on July 24, 2020, Vimeo removed five of the videos. Daystar does not allege that defendants terminated services to Daystar prior to expiration of the two-year subscription term, or that Vimeo took down any of Daystar's (several thousand) other videos.

Discussion

Daystar filed suit in New York County alleging breach of contract and unjust enrichment. Supreme Court dismissed the complaint as barred by Vimeo's immunity under 47 USC § 230(c)(2), the Communications Decency Act. We find that Supreme Court correctly dismissed this lawsuit.

With specified exceptions, section 230(c)(2) prohibits holding an interactive computer service provider² liable for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider ... considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" ( 47 USC § 230 [c][2][A]). Courts have construed section 230 as authorizing broad immunity (see Shiamili v. Real Estate Group of N.Y., Inc. , 17 N.Y.3d 281, 288, 929 N.Y.S.2d 19, 952 N.E.2d 1011 [2011] ["Both state and federal courts around the country have ‘generally interpreted Section 230 immunity broadly’ "], quoting Universal Communication Sys., Inc. v. Lycos, Inc. , 478 F.3d 413, 418 [1st Cir. 2007] ; see also Jane Doe No. 1 v. Backpage.com, LLC , 817 F.3d 12, 18 [1st Cir. 2016] [citing federal authority to show "near-universal agreement that section 230 should not be construed grudgingly"], cert denied ––– U.S. ––––, 137 S. Ct. 622, 196 L.Ed.2d 579 [2017] ). When a complaint makes evident that this immunity applies, the court may dismiss that complaint ( Ricci v. Teamsters Union Local 456 , 781 F.3d 25, 28 [2d Cir. 2015] ; see e.g. National Assn. of the Deaf v. Harvard Univ. , 377 F. Supp. 3d 49, 69 [D. Mass. 2019] [dismissing claims as to content for which "it is apparent that the CDA will shield [defendant] from liability"]).

Section 230(c)(2) Applies to this Suit

Daystar asserts that section 230(c)(2) does not apply to breach of contract claims. Its sole basis for this argument, however, is broad dictum in a decision that has since been withdrawn (see Domen v. Vimeo, Inc. , 6 F.4th 245, 253 [2d Cir. 2021] ["Certain claims sounding in contract or tort may be beyond the reach of Section 230(c)(2) ’s protection from suit"] [emphasis added], withdrawn 2021 WL 4399692, 2021 US App LEXIS 29214 [2d Cir Sept. 23, 2021 No. 20-616-cv], petition for cert filed No. 21-1142, 2022 WL 827911 [Feb. 14, 2022] ). Moreover, even if there were an exception for contractual obligations to host specific content, such an exception would not apply when a contract unambiguously authorizes one party to remove the type of content at issue.

Neither is the statute limited to material explicitly associated with the service provider. Section 230 immunizes "any action ... to restrict access to or availability of material" by "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server" ( 47 USC § 230 [c][2], [f] [emphasis added]). This unambiguous statutory language extends to removal of all material that a provider hosts, including material that is displayed on another party's website.

The Videos Were "Otherwise Objectionable" Under Section 230

Daystar argues that section 230(c)(2) does not cover the removed videos, because "otherwise objectionable" material must resemble the other categories of material listed in section 230(c)(2). Given the differences between these categories, however, the broad final term need not have anything in common with the narrower – but varied – earlier terms ( Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1051-1052 [9th Cir. 2019] [holding that canon of ejusdem generis does not apply to section 230(c)(2), cert denied ––– U.S. ––––, 141 S. Ct. 13, 208 L.Ed.2d 197 [2020] ; see People v. Reilly , 255 App. Div. 109, 110-11, 6 N.Y.S.2d 161 [4th Dept. 1938] [declining to read characteristic of some, but not all, related provisions into "otherwise" term], affd 280 N.Y. 509, 19 N.E.2d 919 [1939] ; see also CSX Transp., Inc. v. Alabama Dept. of Revenue , 562 U.S. 277, 295, 131 S.Ct. 1101, 179 L.Ed.2d 37 [2011] ["A canon meaning literally ‘of the same kind’ has no application to provisions directed toward dissimilar subject matter"]).

In other words, content may be "otherwise objectionable" without being obscene, excessively violent, harassing, or anything similar ( Enigma Software Group, 946 F.3d at 1051 ["But we cannot ... ignore the breadth of the term ‘objectionable’ by construing it to cover only material that is sexual or violent in nature"]; see Domen v. Vimeo, Inc. , 433 F. Supp. 3d 592, 603-604 [S.D.N.Y. 2020] [" Domen I "] [finding immunity under section 230(c)(2) because Vimeo subjectively considered objectionable a video that was not violent, sexual, or harassing], affd on other grounds 2021 WL 4352312, 2021 US App LEXIS 28995 [2d Cir. Sept. 24, 2021, No. 20-616-cv], petition for cert filed No. 21-1142, 2022 WL 827911 [Feb. 14, 2022] ; see also Daniels v. Alphabet Inc. , 2021 WL 1222166, *12-13, 2021 US Dist LEXIS 64385 [N.D. Cal. Mar. 31, 2021, No. 20-cv-04687-VKD] [applying section 230(c)(2) immunity to removal of videos that purportedly violated service provider's policy against promoting medical misinformation]). Daystar's contrary decisions from California predate Enigma Software Group and, in any case, were not based on the material's content (see Song Fi Inc. v. Google, Inc. , 108 F. Supp. 3d 876, 882-884 [N.D. Cal. 2015] [denying CDA immunity to removal of video with unobjectionable content where provider contended that inflated view count was objectionable]; Sherman v. Yahoo! Inc. , 997 F. Supp. 2d 1129, 1137-1138 [S.D. Cal. 2014] [finding CDA inapplicable because defendant did not analyze material to identify objectionable content]). Although Daystar cites one unreported case that arguably supports its position ( National Numismatic Certification, LLC v. eBay, Inc. , 2008 WL 2704404, 2008 US Dist LEXIS 109793 [M.D. Fla. July 8, 2008, No. 6:08-cv-42-Orl-19 (GJK)] ), we find it less persuasive than recent decisions reaching the opposite conclusion. Under section 230(c)(2), then, vaccine misinformation may be "otherwise objectionable" content that providers are entitled to remove.

Daystar alleges that its videos do not make "false or misleading" claims, as prohibited by Vimeo's Acceptable Use...