TechLaw

With so many CDA Section 230 decisions already on the books, the First Circuit did not have to break any new ground when it ruled, in Universal Communication Systems Inc. v. Lycos Inc., No. 06-1826 (1st Cir. Feb. 23, 2007), that Lycos is immune to a defamation claim arising from user posts made on its Raging Bull message boards. Yes, Lycos is a "provider ... of an interactive computer service." Yes, the plaintiff's complaint is based on "information provided by another information content provider." Yes, the plaintiff's defamation claim would treat Lycos "as the publisher or speaker" of that information -- a legal claim for which CDA Section 230 clearly provides immunity. So ruled the First Circuit in this case.

However, along the way, the court disposed of a novel attempt to plead around a clear case of CDA immunity. Draping itself in language borrowed from the copyright infringement case of MGM Studios Inc. v. Grokster Inc., 125 S. Ct. 2764 (2004), the plaintiff claimed that Lycos "actively induced" the spread of disinformation by its message board users. Even assuming that CDA Section 230 could be read to contain an "active inducement" exception, the court said, Lycos did not do anything that would qualify as active inducement of defamatory postings by its users.

The court specifically rejected the contention that Lycos' history of taking legal steps to protect its subscribers from attempts to uncover their identities -- including moving to quash subpoenas and intervening in court cases -- amounted to an inducement of unlawful activity.