Revenge porn is odious, but so is a judge’s disregard for a federal law. In a lawsuit by revenge porn victims over the controversial revenge porn website Texxxan.com, a Texas state trial court had ruled that Texxxan’s web host, GoDaddy, was liable for hosting the site. Unfortunately, that ruling contradicted a federal law, 47 USC 230 (Section 230), that says web hosts aren’t liable for the sites they host.
Recently, a Texas appellate court fixed the lower court’s obvious legal error and emphatically ruled that GoDaddy qualifies for Section 230′s protection. While this is good news for the judicial system’s accuracy, it’s hardly the last word on revenge porn legal questions.
The Case Ruling
The case involves Texxxan.com, a website that published user-submitted “revenge porn,” or pornography being published to hurt a person depicted in it. Texxxan.com generated a lot of controversy when it first went live, but it was shut down quickly. As often happens, the lawsuits live on far longer than the website spawning them.
GoDaddy was Texxxan.com’s web host. As a result, GoDaddy didn’t directly interact with the true bad actors, the people who submitted the revenge porn for publication. Instead, the plaintiffs allege that GoDaddy didn’t pull the plug on Texxxan.com, its hosting customer, fast enough. That kind of argument is exactly what Section 230 was supposed to preempt.
To get around Section 230, the plaintiffs argued that Section 230 didn’t apply to intentional torts (building off ambiguous language in Milo v. Martin), obscene material that isn’t constitutionally protected (a novel argument that I don’t recall seeing before), and civil lawsuits based on criminal statutes (a la Doe v. Bates and numerous others). The plaintiffs also argued that GoDaddy didn’t follow its user agreement. The court decisively says that none of these arguments work:
All of plaintiffs’ claims against GoDaddy stem from GoDaddy’s publication of the contested content, its failure to remove the content, or its alleged violation of the Texas Penal Code for the same conduct. Allowing plaintiffs’ to assert any cause of action against GoDaddy for publishing content created by a third party, or for refusing to remove content created by a third party would be squarely inconsistent with section 230.
This was such an obvious case for Section 230 that it would have been shocking if the appellate court had affirmed the trial court (it was less shocking that the trial court disregarded the law; that happens sometimes with sympathetic cases). Still, this ruling does not end the legal scuffles over revenge porn.
Individual Contributors. Users who submit revenge porn face significant legal risks. I have a separate blog post in the works where I’ve cataloged at least a half-dozen revenge porn victim victories over the submitters of revenge porn.
Web Hosts v. Site Operators. This case only addresses the situation where a commercial web host provides services to the operator of a user-generated content site, i.e., the web host is two steps away from the bad actors. As the court explains, “it is undisputed that GoDaddy acted only as a hosting company and did not create or develop the third party content on the websites.” That factual basis may be more colorable for revenge porn website operators, like Texxxan, who are only 1 step away from the bad actors. As we’ve seen, the California state attorney general’s office thinks it has a way to get these operators criminally; and courts may think it’s less clear whether site operators like Texxxan.com “created or developed” the third party content at issue.
A New Federal Crime? To get around Section 230, revenge porn advocates want to create a new federal revenge porn crime. This wouldn’t help the plaintiffs directly in the lawsuit–only the government can prosecute crimes–but it would expose GoDaddy and many other service providers to potential criminal liability (i.e., jail time) for the bad acts of their customers’ users. A new crime like that could have significant collateral consequences on legitimate activity, as GoDaddy and other vendors become overly conservative to avoid any risk of betting their liberty. So, while the law currently makes it clear that web hosts aren’t liable for the malfeasance of their customers’ users, a new federal crime almost certainly would fundamentally change that calculus.
Case citation: GoDaddy.com, Inc. v. Toups, 2014 WL 1389776 (Tex. Ct. App. April 10, 2014)