If I were an expert survivalist who was offered one tool to survive alone in the elements, I would probably choose a fire starter … but maybe a knife, a pot, or duct tape. Really, I would want all of those items because no one tool has the versatility I would want. But, for an expert in defending website operators from against claims, choosing one tool is easy. Zeran v. AOL is the survivalist’s kit for websites. Fortunately, lawyers almost never find ourselves in a situation where we can only cite one case. But if that were to happen, the Fourth Circuit’s thorough and well-reasoned decision in Zeran would likely be the one case I would choose.
Ever since Congress passed 47 U.S.C. §230, a federal law that says, “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,” creative lawyers have been searching for ways to circumvent the statute and nab website owners for the bad acts of their users. An often-made threat from attempted §230 circumventors is “this case is different.” Some assertions I often hear as to why §230 won’t protect my client in their “unique” situation are that his client asked for removal of the offending content, her client’s business was destroyed, my client said it would remove the post, my client refused to identify the author, or my client edited the post. All of these claims were eradicated twenty years ago in a single court decision in the Zeran case.
The most sure-fire way to plead around §230 and at least survive an early motion to dismiss is to allege that the service provider is the “information content provider.” 47 U.S.C. §230 defines the information content provider as any person or entity that is responsible, in whole or in part, for the creation or development of the content. Early case law, including Zeran, played a critical role in making clear that in order to be responsible for the creation or development of the content, the content had to originate with the service provider. “By its plain language, §230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party use of the service.” Zeran at 330. Had the Fourth Circuit defined “responsible” for the “development” in a broader fashion, that may have changed the course of case law history. As noted by the Ninth Circuit in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), “It’s true that the broadest sense of the term ‘develop’ could include the functions of an ordinary search engine — indeed, just about any function performed by a website.” Citing the Zeran Court’s early guidance, courts have instead adopted a far narrower definition.
We interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.
Roommates, 521 F.3d at 1167-68 (emphasis added)
As the Sixth Circuit stated in Jones v. Dirty World, 755...
