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Yahoo's spam filter protected by § 230

By J. DeVoy

In a decision from the U.S. District Court for the Northern District of California, Yahoo’s spam filtering of its e-mail addresses is a valid exercise of its power as a content provider under 47 U.S.C. § 230, better known as § 230 of the Communications Decency Act, or simply § 230.  The case is Holomaxx Technologies v. Yahoo!, Inc., Case No. CV-10-4929-JF.  The Court’s order, available here, was reached after Yahoo moved to dismiss the claims against it under 12(b)(6), with § 230 serving as an affirmative defense – and basis of the motion – on claims three through six.

The court addressed two main issues:

Whether the court could consider Yahoo’s affirmative defenses – Because Yahoo filed a Rule 12(b)(6) motion to dismiss, Holomaxx challenged the Court’s authority to consider Yahoo’s affirmative defenses, specifically those arising from § 230.  The court agreed with Yahoo that affirmative defenses under the Communications Decency Act can be raised at the 12(b)(6) phase and be used to defeat claims brought against the defendant, so long as they are raised in the Complaint and readily ascertainable from its allegations. Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1200 n. 5 (N.D.Cal.2009); Langdon v. Google, Inc., 474 F .Supp 2d 622, 630-31 (D.Del 2007); see also Jones v. Block, 549 U.S. 199, 215 (2007).  Thus, as the claims against Yahoo naturally invited a defense under § 230 of the Communications Decency Act, the service provider was entitled to raise them as affirmative defenses that negated the plaintiff’s claims in a 12(b)(6) motion to dismiss.

Whether § 230 provides immunity for e-mail spam filters – As there is little question that Yahoo offers an interactive computer service, the court’s inquiry turned to whether Yahoo blocked or filtered material it found “to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,” and did so in “good faith” as required by statute. Holomaxx contended that its e-mails were normal business communications that did not fall within these categories.  Furthermore, because of the association of “harassing” and “objectionable” with the other terms – “obscene, lewd, lascivious, filthy [and] excessively violent,” – Holomaxx contended that its e-mails were not harassing or objectionable merely because they were unwanted.

What constitutes “objectionable” content under § 230 is largely undefined by the courts at this point.  Precedent from the Northern District of Illinois suggests that much deference should be lent to the service provider’s subjective understanding of what is “objectionable” under the statute. e360 Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 608 (N.D. Ill. 2008).  Yahoo produced evidence that approximately 2 million e-mails each year were sent by Holomaxx to invalid e-mail addresses, or resulted in an opt-out by the end-user, even with Yahoo’s filtering in place – a number that would have been higher without spam protection.

The inquiry then turned to whether Yahoo took such measures in good faith.  Holomaxx alleged that Yahoo acted in bad faith, but failed to plead – or produce evidence showing – that Yahoo acted with an absence of good faith.  In failing to produce any evidence on this point, Holomaxx failed to meet its evidentiary burden and could not show Yahoo acted with the absence of good faith that is prohibited by § 230.  Moreover, Holomaxx failed to establish Yahoo’s duty to discuss its reasons for blocking Holomaxx’s mail, or provide a remedy for such blocking, because no such duty exists – its imposition would be a disincentive for the development of blocking and filtering technologies inconsistent with § 230(b)(4).

The court therefore dismissed these claims against Yahoo, though giving Holomaxx the opportunity to amend its Complaint and cure these deficiencies – a task Holomaxx may not be up to, given court’s ruling.  Indeed, the court specifically noted that Holomaxx needs “significantly greater factual detail” to sustain these claims.

The takeaway from this case is the expanded understanding of what content is “objectionable” under § 230, which appears to be almost any kind of communication as long as a meaningful, harmful effect can be shown.  One person’s whine does not establish harm, but 2 million spam e-mails a year, which reach dead addresses or are greeted with an opt-out, crosses the threshold for what is “harassing” or “otherwise objectionable.”

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