Appeals Court Rejects Revenge Pornster's Appeal; Another Bad Section 230 Ruling

from the what's-up,-california? dept

Tue, Jun 28th 2016 11:45am — Mike Masnick

We've noted in the last month or so a series of court rulings in California all seem to be chipping away at Section 230. And now we've got another one. As we noted last month, revenge porn extortion creep Kevin Bollaert had appealed his 18-year sentence and that appeal raised some key issues about Section 230. As we noted, it seemed clear that the State of California was misrepresenting a bunch of things in dangerous ways.

Unfortunately, the appeals court has now sided with the state, and that means we've got more chipping away at Section 230. No one disagrees that Bollaert was a creep. He was getting naked pictures of people posted to his site, along with the person's info, and then had set up a separate site (which pretended to be independent) where people could pay to take those pages down. But there are questions about whether or not Bollaert could be held liable for actions of his users in posting content. Section 230 of the Communications Decency Act (CDA 230) is pretty damn clear that he should not be held liable -- but the court has twisted itself in a knot to find otherwise, basically arguing that Bollaert is, in part, responsible for the creation of the content. This is going to set a bad precedent for internet platforms in California and elsewhere.

The court, not surprisingly, relies heavily on the infamous Roommates.com ruling that also said that site didn't qualify for Section 230 immunity, because it asked "illegal" questions (about housing preferences), and since the site itself had asked those questions, it was liable for creating that "illegal" content. That's different than what happened with Bollaert's UGotPosted site, but the court works hard to insist the two are close enough:

Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights. As in Roommates, but unlike Carafano or Zeran, Bollaert's Web site was "designed to solicit" (Roommates, supra, 521 F.3d at p. 1170, italics added) content that was unlawful, demonstrating that Bollaert's actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity.

I can predict that this paragraph is likely to show up in a bunch of other cases. People are going to insist that lots of other platforms that include any form of structure will now be liable if any of the content based on that structure violates the law. That, again, goes directly against the clearly stated purpose of CDA 230. And it's likely to create something of a mess for internet platforms that regularly rely on 230.

The really crazy thing here is that earlier in the ruling, the court noted that it didn't even need to answer the Section 230 question because they already had enough info to support charges of action "with the intent to defraud." But then it answered the CDA 230 issue anyway, and did so badly. No one's going to feel sorry for Bollaert, who is a complete creep. But the wider precedent of this ruling is going to be dangerous and will likely show up in lots and lots of lawsuits against internet platforms going forward.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: california, cda 230, kevin bollaert, liability, platforms, revenge porn, section 230
Companies: ugotposted, yougotposted

14 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Anonymous Coward (profile), 28 Jun 2016 @ 12:08pm

How much structure = structure?
Are they going down the road where any kind of registration qualifies as structure?

Will up and/or down voting on comments be considered structure?

Will our judiciary self lobotomize or will it be necessary to discombobulate the lot of them in order to get some reasonable rulings?
[ link to this | view in thread ]
Anonymous Coward, 28 Jun 2016 @ 12:12pm

"The dog ate my homework. It's his fault. Honest."
[ link to this | view in thread ]
Almost Anonymous (profile), 28 Jun 2016 @ 2:00pm

Rare disagreement
Mike, I tend to agree with your posts, and I'm all about Section 230, normally. But I'm not sure I agree with your assessment this time. It sounds to me that the gist of the state's argument is that the site solicits illegal content, and thus is not eligible for safe harbors when the hammer comes down. This kind of goes along with "clean hands". You can't look for help from the courts when you were performing illegal activity.

Now it may be another question whether or not "revenge porn" *should* be illegal, but in California, at least, it apparently is, and so in that light, I can see why the site would not qualify for safe harbors. Having said that, it would need to be extraordinarily obvious that the (or a) site was soliciting illegal material for this to be the case. In my mind, Megaupload would not fall under this, as there was no obvious solicitation of illegal content.
[ link to this | view in thread ]
Anonymous Coward, 28 Jun 2016 @ 4:26pm

seems like those ruling california are in a race to the bottom among states for citizens rights.
[ link to this | view in thread ]
Anonymous Coward, 29 Jun 2016 @ 5:35am

Re: Rare disagreement
Some element of your comment is illegal.
The format of Mike's site encourages you to make illegal posts.
I am now going to sue Mike for encouraging you to make illegal posts, because encouraging you to make illegal posts is obviously inherently tied to his business model, which means that section 230 does not apply to him.

Said every lawsuit in the future history of forever.
[ link to this | view in thread ]
Ninja (profile), 29 Jun 2016 @ 8:34am

They found the perfect scapegoat to erode another freedom tool. The EFF and others should weight in heavily to defend this moron lest the US loses more than it already has. At least this may lead to real economic damage prompting a stronger backlash..
[ link to this | view in thread ]
Justin Utter Observation, 29 Jun 2016 @ 9:29am

Sex Used Nefariously is Pure Politics
If people would just create their own porn, record it for themselves and keep it off the internet, we would not be having such discussions, thusly keeping the government out of our bedrooms. You try to smear someone in this manner, you are getting deep into politics. So, Be Warned.
[ link to this | view in thread ]
Gus Geiser (long profile), 29 Jun 2016 @ 9:51am

Re:
Looks as if he created the platform for online solicitation of what had already been ruled illegal content in Californication (whoops) California and was actively soliciting it under the misguided belief that it was protected under Section 230. Even if he claimed it was all in good faith, who could believe that? All the lines that get crossed when society's sexuality goes unchecked are getting checked and checked again. You can't get a decent pussy shot on cable TV anymore, even though we pay and pay. They still want us to pay more. WTF?
[ link to this | view in thread ]
Whatever (profile), 29 Jun 2016 @ 11:42am

Re: Re: Rare disagreement
Your attempt at a comeback isn't working, because it misses the point. Here on Techdirt, the comments may (from time to time) border on the illegal or encourage illegal acts. The Techdirt business model is not to use those comments to blackmail you into paying them.

The revenge porn guy set up a site that specifically collected enough information so that his blackmail site could turn around and solicit girls for payment to get their nakedness off the internet. The nature of the process is one that should never be protected in any form.

Section 230 isn't a cover all. The guy here created a system specifically with the goal of extorting people. That should not be (and clearly is not) protected speech. Section 230 should never be used to cover or protect such illegal schemes.
[ link to this | view in thread ]
Wendy Cockcroft, 30 Jun 2016 @ 7:44am

Re: Re: Re: Rare disagreement
That's a compelling argument, Whatever. Now the question is, are you right? Mike seems to think that Bollaert provided the platform for creepy behaviour, then took advantage of the creepiness. The creepiness had to be there first for him to take advantage of it. If Mike is right, I'd have Bollaert for taking advantage of the creepiness, but a platform is a platform. He's only liable for his own creepiness, not the creepiness of his platform's users.

Mike knows that if he posts a story by Tim Cushing in which cops get called out for preying on the people instead of serving and protecting them, there's a reasonable chance that the revolutionary comrades will show up calling for a violent uprising. As you quite correctly pointed out, Mike doesn't run this site with the intention of riling up the gun nuts but he does let Tim post stories that might.

Okay, what about the NRA or Stormfront forums? They provide a platform for people with extremist ideas to sound off. If they use the forums to plan and enact some kind of armed confrontation with the authorities are the forum owners liable? They are set up to attract people who might do that kind of thing.

Finally, I'm as opinionated as hell. It often gets me into trouble. I'm not responsible for the freak-out-ery that sometimes results from a statement I've made, I am only responsible for what I myself do. And by expressing views that upsets people with extreme viewpoints I think we can agree that by doing so I create a platform on which they can act. I'm doing it now with this comment.
[ link to this | view in thread ]
blogagog (profile), 1 Jul 2016 @ 1:06pm

I'm not really a fan of revenge porn, but I can't seem to find ANY porn. Did they take that out of the internet or something?

Oh wait, nevermind. Safe search was on. Problem solved.
[ link to this | view in thread ]
ohmygod, 9 Jul 2016 @ 3:05am

Re: Re: Re: Re: Rare disagreement
A platform is a platform. In other words immunity before trial. Sounds like injustice to me. Maybe its like giving immunity to soldiers for murder as long as they don't shoot one of their own. No wonder immunity creates so much illegality. If we can get war crimes we should be able to see internet crimes. Crime is crime independent of platform. Thus immunity for the platform should be decided on a case by case basis.
[ link to this | view in thread ]
ohmygod, 9 Jul 2016 @ 3:25am

Re:
In other words I should be able to run a website under a fake name, no address, no email, no abuse policy and I should be able to solicit from my users the personal details of people including their personal nudes, names, addresses, email id. Good going for the internet. It's less transparent compared to governments. What an achievement in the glorious days of democracy!
[ link to this | view in thread ]
ohmygod, 9 Jul 2016 @ 3:42am

Re:
Just because you don't see or watch revenge porn doesn't mean it isn't there.
[ link to this | view in thread ]