Communications Decency Act Protects Website Operators from Liability Despite Blogger Content Policy

by Wilson Elser

Wilson Elser

In affirming the grant of Google’s Motion to Dismiss for failing to remove a blog post, on February 23, 2018, the D.C. Circuit Court concluded that the Communications Decency Act (CDA) immunizes website operators from liability for publication of third-party content even when they have content guidelines.

In Bennett v. Google LLC, Case No. 17-cv-7106 (D.C. Cir. Feb. 23, 2018), the D.C. Circuit Court was presented with an appeal of a dismissal of Google, which was sued for failing to remove a blog post that was alleged to be defamatory to Dawn Bennett, owner of DJ Bennett Holdings, LLC (together, the Plaintiffs), a high-end sports apparel retailer.

In March 2013, the Plaintiffs hired a search engine optimization (SEO) and search engine marketing (SEM) company to provide services to help increase its sales. After a few months, the relationship soured and the Plaintiffs and the SEO company renegotiated their contract. An issue arose regarding payment, which was ultimately resolved, but the SEO company wrote a blog titled “DJ Bennett-think-twice-bad business ethics” and published it through Google. The Plaintiffs attempted to convince the SEO company to remove the post, but to no avail. It then turned its attention to Google.

The Plaintiffs’ counsel contacted Google’s general counsel and other senior corporate officers, “asking them to drop” the blog “because it violated Google’s Guidelines of what is appropriate material for inclusion in blogs.” Notwithstanding the request to remove the post, Google continued to publish the blog.

The Court recognized that Google has a “Blogger Content Policy” that regulates inter alia “adult content, child safety, hate speech, crude content, violence, harassment, copyright infringement, and malware and viruses.” The Court understood that users are encouraged to flag policy violations, and Google, if it finds that the blog violates its policies, may “limit access to the blog, delete the blog, disable the author’s access or report the user to law enforcement”; and if it finds that the blog does not violate the policy, Google “will not take any action against the blog or blog owner.”

The Decision
The D.C. Circuit Court reviewed the underlying dismissal de novo. The Court acknowledged that the “CDA recognizes that the internet offers ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’” The CDA further codifies “the policy of the United States (1) to promote the continued development of the Internet and other interactive computer services … [and] (2) to preserve the vibrant and competitive free market that presently exists for the Internet ….”

To effect those ideals, the CDA incorporates a “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” which reads: “no 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). The D.C. Circuit Court further recognized that “to give these provisions teeth, section 230 provides that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

Giving deference to the seminal case of Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the D.C. Circuit Court recognized that the intent of the CDA was “to promote rather than chill internet speech.” It acknowledged that the CDA “encourage[s] service providers to self-regulate the dissemination of offensive material over their services,” and “incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability,” which “paved the way for a robust new forum for public speech as well as a ‘trillion-dollar industry centered around user-generated content.’”

The Court found that CDA immunity applies if the defendant can meet a three-part test:

  • It is a “provider or user of an interactive computer service.”
  • The relevant post includes “information provided by another information content provider.”
  • The complaint seeks to hold the defendants liable as the “publisher or speaker” of the post.

Thus, the Court recognized the difference between “interactive computer service” providers − which are generally eligible for CDA section 230 immunity − and “information content provider[s],” which are not entitled to immunity.

Here, Google was found to qualify as an “interactive computer service” because it enabled computer access by multiple users to a computer platform. The Plaintiffs conceded this fact. However, the Plaintiffs argued that Google should have been liable as a “publisher of the content” since it established and enforced its “Blogger Content Policy,” and was thereby influencing the content it published. The D.C. Circuit Court rejected this claim, finding that the argument ignored “the very essence of publishing is making the decision whether to print or retract a given piece of content.” It described the difference in terms of input and output of content and found that the input was the SEO company’s content (i.e., the negative blog post), and Google’s role was solely one of output control (i.e., its choice was limited to a “yes” or “no” decision whether to keep the content available on its site).

The D.C. Circuit Court concluded that the CDA allows computer service providers to establish and enforce standards of decency without the risk of liability − so long as it does not “edit” or “dictate” the content. Since the decision to print or retract is merely a publishing decision, such conduct is covered by the CDA immunity. The Court’s decision did not amount to an approval of the posting, noting that the Plaintiffs’ action should be directed toward the alleged culpable party, i.e., the party that posted the alleged defamatory message.

This decision reinforces the applicability of CDA immunity for website operators who host user-generated content, even when the website has established its own standards of decency to guide the person who authors and publishes the post.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.