Jane Doe v. America Online (Fla. 2001)

WELLS, C.J.

Doe filed a complaint in 1997 against Richard Lee Russell and America Online (AOL), an Internet service provider (ISP), to recover for alleged emotional injuries suffered by her son, John Doe. Doe claimed that in 1994 Russell lured John Doe, who was then eleven years old, and two other minor males to engage in sexual activity with each other and with Russell. She asserted that Russell photographed and videotaped these acts and used AOL's "chat rooms" to market the photographs and videotapes and to sell a videotape. Doe did not allege that Russell transmitted photographs or images of her son via the AOL service. In her six-count complaint, Doe claimed that AOL violated criminal statutes, section 847.011 and section 847.0135(2), Florida Statutes (1993).

She alleged that AOL was negligent per se in violating section 847.0135, Florida Statutes, by allowing Russell to distribute an advertisement offering "a visual depiction of sexual conduct involving [John Doe]" and by allowing Russell to sell or arrange to sell child pornography, thus aiding in the sale and distribution of child pornography, including obscene images of John Doe. Doe asserted a separate claim for negligence based on the allegation that AOL knew or should have known that Russell and others like him used the service to market and distribute child pornography; that it should have used reasonable care in its operation; that it breached its duty; and that the damages to John Doe were reasonably foreseeable as a result of AOL's breach. Doe further claimed that complaints had been communicated to AOL as to Russell's transmitting obscene and unlawful photographs or images and that although AOL reserved the right to terminate without notice the service of any member who did not abide by its "Terms of Service and Rules of the Road," AOL neither warned Russell to stop nor suspended his service. Two of the counts in Doe's complaint were directed at Russell.

AOL moved to dismiss Doe's complaint and argued, inter alia, that Doe's claims were barred by 47 U.S.C. §230 (Supp. II 1996), in that section 230 prohibits civil actions that treat an interactive computer service as the "publisher or speaker" of messages transmitted over its service by third parties.

The trial court granted AOL's motion to dismiss with prejudice, finding that the immunity Congress provided for interactive computer services in section 230 applied to Doe's claims. The Fourth District Court of Appeal affirmed and held that the trial court's conclusion was consistent with Zeran v. America Online, Inc., in which the federal circuit court held that "Congress' desire [in enacting 47 U.S.C. § 230] to promote unfettered speech must supersede conflicting common law causes of action." The Fourth District certified the questions of great public importance to this Court.

The certified questions in this case focus upon the application of 47 U.S.C. §230 to Florida tort actions that are based upon alleged "distributor" liability of ISPs. We first address the Fourth District's second and third certified questions and rephrase them into this combined question:

Whether section 230 preempts Florida law as to causes of action based in negligence against an Internet Service Provider (ISP) as a distributor of information allegedly in violation of Florida criminal statutes prohibiting the distribution of obscene literature and computer pornography?

The importance of this certified question is obvious in light of the current explosive growth in worldwide use of the Internet. The fundamental issue here is whether companies that provide access to the Internet are subject to common-law civil tort causes of action based upon the laws of each of the fifty states or whether Congress has acted to make ISPs immune from such common-law civil actions.

LEWIS, J., dissenting.

I understand that it may be somewhat attractive for the majority to follow an existing published opinion from a different jurisdiction; however, I conclude that, because the analysis upon which it is based is faulty and leads to a totally unacceptable interpretation, it should not be followed.

Therefore, I dissent.

It is clear that Congress, through the Communications Decency Act, 47 U.S.C. §230 (the "CDA"), intended to shield an Internet Service Provider (an "ISP") from liability due solely to implementation of a good-faith monitoring program whose goal is to preclude dissemination of illicit and improper materials through the ISP's electronic medium. Contrary to the majority's view, however, the carefully crafted statute at issue, undergirded by a clear legislative history, does not reflect an intent to totally exonerate and insulate an ISP from responsibility where, as here, it is alleged that an ISP has acted as a knowing distributor of material leading to the purchase, sale, expansion and advancement of child pornography, after having been given actual notice of the particular activity, by taking absolutely no steps to curtail continued dissemination of the information by its specifically identified customer, when it had the right and power to do so. In my view, the result obtained by this Court's interpretation of congressional intent in this area frustrates the core concepts explicitly furthered by the Act and contravenes its express purposes. Through the majority's interpretation, the so-called "Decency Act" has, contrary to well-established legal principles, been transformed from an appropriate shield into a sword of harm and extreme danger which places technology buzz words and economic considerations above the safety and general welfare of our people.

I suggest that by interpreting the statute to provide this carte blanche immunity for wrongful conduct plainly not intended by Congress, the majority view ignores the common law underpinnings of the present controversy; fails to accommodate the traditional distinction between publishers and distributors consistently recognized in American jurisprudence; overlooks the historical timing of the subject legislation in the context of developing case law; excludes proper analysis of the careful wording of the subject legislation; and does not consider the obvious intent additionally underscored by Congress both in the stated policies underlying the statute, and in the statute's legislative history. These grounds, collectively--coupled with the rationale of the very case which the majority deems controlling--warrant a far different result.

In Zeran (as quoted in the majority opinion), the Fourth Circuit began by explaining what Congress had intended when it enacted the Communications Decency Act, 47 U.S.C. §230. The legislation was aimed at removing "disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." Specifically, Congress enacted the CDA as a measure to "overrule Stratton Oakmont v. Prodigy and other similar decisions which have treated such providers and users as Publishers or speakers of content that is not their own because they have restricted access to objectionable material."

I submit that, with this predicate, a correct understanding of the Stratton Oakmont decision is thus key to a proper analysis here. In Stratton Oakmont, the court had held Prodigy, an interactive computer service like AOL, "to the strict liability standard normally applied to original publishers of defamatory statements, rejecting Prodigy's claims that it should be held only to the lower `knowledge' standard usually reserved for distributors. The court reasoned that Prodigy acted more like an original publisher than a distributor both because it advertised its practice of controlling content on its service and because it actively screened and edited messages posted on its bulletin boards." While the initial foray into Zeran's analysis is thus promising, its eventual conclusion--and thus, the majority's corresponding conclusion in this case, patterned on the analyses contained in the two Zeran decisions--is, in my view, a startling non sequitur. Contrary to case law which has traditionally recognized an important difference between distributor and publisher liability, the majority opinion rejects any such distinction, relying on the Restatement (Second) of Torts § 577--a venerable treatise published in 1977 --for the proposition that "the law treats as a publisher or speaker one who fails to take reasonable steps to remove defamatory statements from property under her control." However, close examination of the Restatement (Second) itself reflects that this reliance is misplaced, both because it is not clear, from a reading of chapter 24 of the Restatement in its entirety, that section 577(2) is the section which most properly applies to this controversy, and, I suggest, because--even if it were--section 577 does not support the proposition for which it is cited. The fatal flaw in Zeran's logic--and thus, in the majority view--is its erroneous conclusion that, under section 577 of the Restatement of Torts (Second), distributors are merely an internal category of publishers.

My analysis leads to the conclusion that this is not at all what the Restatement reflects. First, distributor liability, which we must address, is defined not in section 577, but in section 581(1) (which appears to apply here). However, assuming arguendo that section 577(2) did define "distributors," it does not reflect that they are a "subset" of primary publishers. Rather, they belong to a set of entities who perform a "secondary role in disseminating defamatory matter authored and published by others." In defining publication, the Restatement (Second) provides, in section 577(1), that "[p]ublication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed." In section 577(2), it provides further that one who "intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control," although not a publisher (as defined in subsection (1), "is subject to liability for its continued publication." Restatement (Second) of Torts §577. This is a far different statement than that contained in other parts of chapter 24, which identify different categories of actors as being "subject to liability as if [they] had originally published" the defamatory matter (§ 578), or "subject to the same liability as an original publisher" (§581(2). While a proprietor who fails to remove known defamatory material exhibited on his property may be subject to tort liability, such liability is not that of an original "publisher."

Copyright © 2004 Dale A. Herbeck
Last update: 19 January 2004