Britain asks Schwarzenegger to Close Prostitute Web Site -- But Can he Do That?

A. Funny What You Come Across When Reading the News

In a recent article entitled “Britain Asks Schwarzenegger to Close Prostitute Web Site,” Reuters reported that Harriet Harman, the British government minister for women and equality (no caps in the original article, so I’m assuming that’s how they write it) has asked California governor Arnold Schwarzenegger (my fair state) to shut down a U.S. website entitled "Punternet" that allows men (and I’m assuming women too) to rate prostitutes, including those working in London.

Ms. Harman (who one assumes is not reviewed on that particular site, but I have not personally checked to verify this) stated at a recent Labor Party conference that "Punternet" fuels the demand for prostitution, degrades women and puts them at risk. I am certain that it degrades women; as to fueling the demand for prostitution, I find that a little specious. I mean, that’s like saying that a match thrown into a raging inferno fuels fire. As to putting women at risk, they’re not in a great situation anyway, and maybe this would allow someone to track/find rescue them, but maybe this is just Westside naiveté on my part.

In any event, the Minister for Women and Equality (to hell with it, I’m capitalizing her title) has apparently asked Governor Schwarzenegger to close down Punternet, believing that he has the power to do so given that it is located here in California. "Surely it can't be too difficult for 'The Terminator' to terminate Punternet and that's what I am demanding that he does."

Not so fast there Ms. Minister. In United States, we have the Communications Decency Act of 1996, Section 230 of which protects operators of websites and other interactive computer services from liability for publishing the statements of third parties. 47 U.S.C. § 230. And in Britain? They have the Queen. Of course, another difference between the two countries (and I’m not counting the food here folks) is that Britain permits – as in it’s legal – prostitution, while here it – umm – is not.

So back to Section 230, and how it might impact Punternet. Section 230 provides clearly that “[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,” and that “n]o cause of action may be brought and liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. §§ 230(c)(1), 230(e)(3); see also Blumenthal v. Drudge, 992 F. Supp. 44, 51 (D.D.C. 1998) (in enacting the Section 230, "Congress made a policy choice . . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially ages. ").
Section 230's protection is not limited to civil liability. That is, while it does not apply to federal criminal law, see 47 U.S.C. § 230(e)(1), the most plausible reading of the statute's language is that it preempts state criminal actions that are inconsistent with it. 47 U.S.C. § 230; see also Gibson v. Craigslist, Inc., 2009WL 1704355 (SDNY June 15, 2009). (applying the service provider immunity of § 230, the court held that Craigslist was not liable for an advertisement displayed on Punternet, even if the ad itself was tortuous) . When determining the availability of immunity under Section 230, courts engage in a three part inquiry that is discussed in greater detail below. See e.g. Green v. Am. Online (AOL), 318 F.3d 465, 470-71 (3d Cir. 2003), cert. denied, 540 U.S. 877 (2003); Kruska v. Perverted Justice Found. Inc., No. 08 Civ. 54, 2008 WL 2705377, at *2-3 & n.1 (D. Ariz. July 9, 2008).

B. An Application of Section 230 to Punternet

Here, as indicated above, Punternet (just to digress – I don’t really know what this means, “Punter,” and I’m pretty sure that I don’t want to; still, every time I write it, I get the feeling that maybe I’m saying something I shouldn’t – like that Monty Python skit about the German guy and the English dictionary. . . ) provides a forum where users can review prostitutes. (Again, according to Minister Harman, Punternet allows users to compare and rate services in the same way as they would a restaurant, a hotel or a holiday – apparently as in “tasty,” “nicely redone” and “a party from start to finish.”) Clearly a site of that nature may be abused by third-parties in connection with various crimes despite efforts Punternet itself might take to prevent this. But can Punternet be shut down, or is it protected by Section 230? And moreover, what steps might it take to help insure that it is entitled to immunity pursuant to Section 230 should this ever become necessary?

Here are a few thoughts from the trenches:

1. Terms of Use –

I would strongly recommend that Punternet create and implement an appropriate and detailed “Terms of Use,” and that henceforth all usage of Punternet be subject to those terms. The “Terms of Use” should be readily available to all users through prominently displayed links throughout the website. Further, I would advise that, in order for users to post any review, he or she first affirmatively declare his or her acceptance of the “Terms of Use” by clicking an "ACCEPT" button located below a full-text display of those terms themselves.

Among other things, I would recommend that the “Terms of Use” explicitly prohibit the posting or making available of any content that is "unlawful" or that "advertises any illegal service," including in particular "any offer or solicitation of illegal prostitution." To promote compliance with these “Terms of Use,” Punternet should employ some self-regulatory measures, including an automated filter that blocks reviews that contain words or phrases that are associated with problematic content and perhaps a community flagging system that encourages users to "flag" inappropriate ads for removal. I realize that this might limit what they are trying to do on the site, but I’m paying the “conservative lawyer” here: I’m just talking about staying within the confines of Section 230, not keeping Punternet’s users happy (which they apparently are taking care of themselves).

2. Strict Compliance with Section 230 –

As indicated above, the key provision of Section 230 states that "[n]o 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." 47 U.S.C. § 230(c)(1). As the Ninth Circuit has noted, there is a "consensus developing across other courts of appeal that § 230(c) provides broad immunity for publishing content provided primarily by third parties." Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003); see also Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) ("Courts have construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content"); Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997) ("Section 230 . . . plainly immunizes computer service providers like AOL from liability for information that originates with third parties"); Green v. America Online, Inc., 318 F.3d 465, 471 (3d Cir. 2003) ("By its terms, § 230 provides immunity to AOL as a publisher or speaker of information originating from another information content provider"); Ben Ezra, Weinstein, & Co., v. America Online, Inc., 206 F.3d 980, 984-85 (10th Cir. 2000) (§ 230 "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third-party"); Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); ("[W]e too find that Section 230 immunity should be broadly construed"). Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F. 3d 666 (7th Cir. 2008) (under Section 230, Craigslist itself could not be held liable for its users' allegedly unlawful postings).

The last case listed above, Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. (“CLC”,) is instructive as there is little material distinction between the facts in that case and my fellow citizen’s operation of Punternet. In CLC, the plaintiff sued Craigslist for allegedly discriminatory housing ads posted by Craigslist-users. In affirming the lower court’s dismissal of the case, the Court of Appeal noted that services like Craigslist are, in many respects, “like common carriers such as telephone services,” meaning that they do not read the messages they transmit on their systems. 519 F.3d at 668. Based on this, the Court recognized that requiring Craigslist to review each ad is neither practical nor effective. Id. at 669. It therefore concluded that Craigslist was not obligated to review the ads at issue because Section 230 immunized it from liability for them. In short, the plaintiff in the CLC case was seeking to hold Craigslist – a provider or user of an interactive computer services – liable for publishing the ads at issue in that case, and the Court (applying the clear immunity set forth in Section 230),said “no.” Id. at 671.

As with CLC case, any criminal or civil action against Punternet based on users who may be involved in prostitution should be barred by Section 230 so long as Punternet does not induce anyone to advertise any illegal service, or solicit prostitution. See 519 F.3d at 671-72 ("given § 230(c)(1) [the CLC] cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful [conduct]"). 519 F.3d at 672. See also Fair Housing Council v. Roommates.com, 521 F.3d. 1157, 1174 (9th Cir. 2008) (en bane) (holding that a website operator may not be liable for unlawful ads posted by its users, except in circumstances where the website operator structures its site so as to directly and necessarily cause its users to include unlawful statements in their postings).

In Roommates.com, a portion of the defendant’s website required users to answer multiple choice questions which, the court found, necessarily led to the generation of statements of unlawful preferences in housing ads. 521 F.3d. at 1165. The Roomates.com website also included an open-ended "Additional Comments" section which allowed users to insert content, some of which also was allegedly unlawful. Still while the Court held that Section 230 did not immunize Roommates.com with respect to the allegedly unlawful content dictated by the multiple choice questions, the court expressly held that everything users included in the "Additional Comments" section was created entirely by the users themselves, and thus the site operator was entitled to immunity from liability for any unlawful content contained there pursuant to Section 230(c)(1). Id. at 1174-75.

To this end, and in keeping with the Roommates.com holding, I would advise that Punternet avoid any “check the box” sort of questionnaire (analogous to the multiple choice questions discussed in Roomates.com) that may cause its users to include unlawful statements or otherwise promote (engage in) unlawful conduct. Rather, I would advisethat Punternet simply provide a blank text box in which users may review the service their received, advertise their service, or post their comments. In short, Punternet should have no content dictates or constraints (other than compliance with the “Terms of Use”) which induce users to advertise, solicit or promote any illegal activity. By limiting its function similarly to providing something analogous to the open-ended "Additional Comments" feature of the Roommate.com website, Punternet will help insure its Section 230 immunity from liability for content published by its users.

3. Diligence in Assuring Punternet Meets the Section 230 Immunity Test –

While similar to recommendation No. 2 above, it is important to remember that immunity under Section 230 must be determined, if at all, by a formal legal ruling (e.g. only after the website at issue has been sued based on its content), and that any court before whom this issue arises will apply the three-part “Section 230 immunity test.”

Specifically, the Court will first determine whether the defendant is a provider of interactive computer services. From what we have seen of Punternet, it seems that it is indeed a provider of an interactive computer services. See Chicago Lawyers' Comm. For Civil Rights, supra, 519 F.3d 666; see also Carafano v. Metrospash.com Inc., 207 F. Supp. 2d 1055, 1065-66 (C.D. Cal. 2002), affd, 339 F.3d 1119 (9th Cir. 2003).

Second, the Court will look at whether the content was placed on the website by independent third parties or by an agent of the website itself. If the content was posted by an independent third party, the website should be entitled to protection under Section 230. In this instance, the reviews and on Punternet appear to have been placed there not by Punternet, but from “another information content provider,” namely the users of Punternet. 47 U.S.C. § 230(f)(3).

Finally, the Court will look at whether the would-be legal action is merely a cloaked attempt to hold the website itself liable for third party content, e.g. based on an alleged failure to block, screen, or otherwise prevent the dissemination of such third-party content. Here, it is difficult to imagine any would-be claims other than those that seek to hold Punternet itself liable for the reviews and/or advertisements posted there by third parties. Because those claims would, by necessity, be directed toward Punternet as a "publisher" of third party content, they would be subject to protection under Section 230. Green v. Am. Online, supra 318 F.3d at 470-471 (affirming dismissal of claim that AOL "negligent[ly] fail[ed] to properly police its network for content transmitted by its users" because Sects m 230 bars "attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role”; internal quotations and citation omitted).

Along this same line, see also Myspace, supra, 474 F. Supp. 2d at 849 ("Plaintiffs argue this suit is based on MySpace's negligent failure to take reasonable safety measures to keep young children off of its site and not based on Myspace’s editorial acts . . . . No matter how artfully Plaintiffs seek to plead their claims, the Curt views Plaintiffs' claims as directed toward MySpace in its publishing, editorial, and/or screening capacities."); Green, supra, 318 F.3d at 470-71 (affirming dismissal of claim that AOL "negligent[ly] fail[ed] to properly police its network for content transmitted by its users" because Sects m 230 bars "attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role”); see also Stoner v. eBay, Inc., No. 305666, 2000 WL 1705637, at *3 (Cal. Super. Nov. 1 2000) (rejecting plaintiffs "contention . . . that eBay should be held responsible for failing to monitor the products auctioned over its service" because "Congress intended to remove [through Section 230] any legal obligation of interactive computer service providers to attempt to identify or monitor the sale of such products").

Now again, I have not reviewed or visited Punternet; I’m basing my comments strictly on Ms. Harman’s comments, as she seems to be pretty familiar with the site. Nonetheless, given what I’ve read, it appears that the three elements for Section 230immunity would be met if the recommendations set forth were followed. The mere fact that Punternet provides a forum for erotic content – or even crimes that may flow from that content – is not sufficient to treat the website as the publisher of any posted illegal content. See Gentry v. eBay, Inc., 99 Cal.App.4th 816, 832 (2002) (holding that eBay's provision of product categories did not render it responsible for ads created by users).

4. Section 230's Specific Exceptions –

One final note is that Section 230 contains several exceptions of which Punternet should be aware. Specifically, Section 230 is inapplicable in cases involving enforcement of federal criminal statutes, 47 U.S.C. § 230(e)(1), intellectual property law, 47 U.S.C. § 230(e)(2), and communications privacy law, 47 U.S.C. § 230(e)(4). Section 230 does not contain any exception for State prostitution laws. This would seem to show that Congress did not intend to exempt such laws from the statute's reach. See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent.")

C. Conclusion

Section 230 was enacted, for among other reasons, to encourage self-regulation of the Internet by eliminating disincentives to such self-regulation that existed prior to the passage of that statute. Congress sought to achieve this goal by “encourag[ing] interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material.” Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003); see also Zeran v. America Online, Inc., supra, 129 F.3d at 331 (Section 230 was intended "to encourage service providers to self-regulate the dissemination of offensive material over their services"). I note this because, for Section 230 to be an effective immunity, a certain amount of self-regulation is expected of service providers. Punternet can comply with these expectations by, among other things, taking the steps set forth above including (but not limited to) : (1) the creation and implementation of a detailed “Terms of Use”; (2) avoiding any structure that directly and necessarily causes its users to include unlawful statements in their postings; and (3) deleting – if and when discovered – any reviews or advertisements that contain unlawful statements or solicit illegal activities.

So to wrap this up, let's all keep this straight: Britain allows prostitution, but does not have an equivalent to 47 U.S.C. § 230; the U.S. has that statute which creates a broad immunity for websites that publish this kind of third party content, but doesn't allow prostitution. Oh, and Britain has the Queen as the faux ruler of their country, and we Californians have a faux Terminator as the ruler of our state. It's a bit like Through the Looking Glass around here.

Ok, so that you’ve read this, which web site are you going to next?


Jonathan Pink heads the Internet and New Media Team at Bryan Cave, LLP. He is resident in the firm’s Irvine, California (Orange County) office, and is a member of the firm’s Intellectual Property Group. He can be reached at jonathan.pink@bryancave.com or by dialing 949-223-7173.