Providers of an interactive computer service?
The court found "no issue" with the claim that the defendants qualify as providers of an interactive computer service under the CDA. It cited several cases for the proposition that the category includes website operators, then concluded that this issue required "no further discussion".[1]
Commercial actors or publishers?
The court held that the defendants' status as "commercial actors" did not deny them the protections of the CDA. The court began its discussion of this issue with a reminder that, although CDA immunity is most often used to preempt defamation claims, it has also been applied to a variety of other causes of action including housing anti-discrimination laws and negligent publication of advertisements. In the court's view, the title or wording of the cause of action is not dispositive of whether a defendant is acting as a "publisher or speaker". Rather, CDA § 230(c)(1) precludes liability where "the duty that the plaintiff alleges the defendant violated derives from the defendant's status or conduct as a 'publisher or speaker.'"[1]
As such, the court rejected the plaintiffs' argument that the CDA did not apply because its claims treated the defendants as "commercial actors". It compared the argument to one rejected in Barnes v. Yahoo!, and quoted the Ninth Circuit court's explanation that the CDA covers "any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online."[12] The court went on to cite Donato v. Moldow, a New Jersey appellate decision holding that the CDA's language was intended to "promote the development of e-commerce" and prevent websites from being taken down by litigation.[13] Therefore, the court concluded that the defendants' activity fell "squarely within the CDA's purview."[1]
Information content providers?
The court rejected the state's argument that Orbitz and TicketNetwork were information content providers for the purposes of CDA § 230 immunity. First, the court discussed two other CDA § 230 cases: Donato, mentioned above, and Carafano v. Metrosplash.com, Inc.[14] The plaintiff in Donato argued that the defendant became an information content provider by selectively deleting certain posts from the bulletin board he operated, thereby shaping the content of the forum. The New Jersey Appellate Division court disagreed, finding that the defendant exercised "a publisher's traditional editorial functions," which are "the very conduct Congress chose to immunize by § 230," and held that he qualified for immunity.[13] In Carafano, the defendant operated a dating website that required users to fill in a standard form, including several multiple-choice questions, in order to complete their profiles. The plaintiff argued that, by determining in advance which answers its users could choose, the defendant participated in the "development" of the information, making him an information content provider. The Ninth Circuit court rejected this theory, holding that a defendant's editing or selection do not render him a provider as long as the "essential" content is provided by a third party.[14]
Next, the court examined the control that Orbitz and TicketNetwork exercised over their sites' content. Orbitz's control was largely formal, with requirements as to where Orbitz's name, logos, and other design elements should be located, but Orbitz also retained the ability to insert certain links and request removal of content.
Disposition
The court granted the defendants' motions for summary judgment, finding that they "help to create and maintain a vibrant, competitive, market" for consumers of travel and concert tickets shopping online, consistent with Congress's intent in enacting § 230 of the CDA.[1]
