First Circuit Applies the CDA to Protect Lycos

by Lee Gesmer on June 20, 2007

I’ve written often about Section 230 of the Communications Decency Act (CDA), which protects “interactive computer services” as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker or any information provided by another information content provider

And –

No provider or user of an interactive computer service shall be liable on account of —

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected �

Put simply, this law allows web site operators to avoid liability for certain types of publications on their sites by people outside their control, and to police their sites as they wish. The most obvious example is any kind of bulletin or message board that allows comments by members of the public. The site operator is not the “publisher,” and therefore is not liable for tort claims, such as defamation.

The First Circuit Court of Appeals recently applied this law for the first time in this circuit, in the case of Universal Communication Systems, Inc. (UCS) v. Lycos, Inc. Lycos, the owner of the Raging Bull website, allows the public to discuss the fortunes of public companies. The Raging Bull message board for UCS (ticker UCSY) is here.

In 2003, various posters (or possibly the same poster, operating under several different screen names) made disparaging and possibly defamatory comments about UCS on the Raging Bull UCS message board page. UCS sued these individuals under their screen names (in other words, as John Does), but also sued Lycos for publishing these comments. In other words, UCS sued the message board.

Lycos asserted the CDA in defense. After the District Court dismissed based on the CDA, the plaintiff appealed to the First Circuit, which published its decision early this year.

To no one’s great surprise, the First Circuit held that Lycos was protected by the CDA. The First Circuit rejected a variety of attempts by UCS to penetrate the protection of the CDA: that Lycos was not an “Internet service provider,” that the postings became Lycos’ “own” speech when it didn’t remove them after being notified of their existence by UCS, that Lycos had “constructed and operated” its web site so as to “contribute to the proliferation of misinformation,” and that Lycos had engaged in trademark dilution (the CDA does not protect bulletin boards from intellectual property claims, particularly trademark, trade secret and patent claims).

Lycos had the wind at its back in this case, but this is still an important precedent in understanding the CDA, and the application of this statute by the First Circuit.

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