Ninth Circuit Reaffirms Limit on Section 230 Immunity for Filtering Objectionable Content

January 22, 2020

Section 230 of the Communications Decency Act (CDA) continues to get a lot of attention. Former Vice President Joe Biden recently called for it to be revoked and, as previously discussed on this blog, the DOJ is exploring changes to it. While the broader debate about Section 230 rages on, court decisions continue to shape the scope of the law.

On December 31, 2019, in Enigma Software Group USA, LLC v. Malwarebytes, Inc.,[1] the Ninth Circuit reaffirmed a motive-based good-faith limitation on the “Good Samaritan” provision of Section 230.[2] A Ninth Circuit panel originally recognized this limitation in a September 12, 2019 opinion, but the defendant Malwarebytes vigorously opposed the panel’s ruling and, supported by the broader technology industry,[3] sought panel rehearing and rehearing en banc. The Ninth Circuit ultimately rejected that effort, and the panel issued an amended opinion reaffirming the good-faith limitation on the “Good Samaritan” provision of Section 230.[4]

Section 230’s “Good Samaritan” provision immunizes internet-service providers from liability for giving internet users the technical means to restrict access to “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”[5] In Enigma, the Ninth Circuit addressed the scope of an internet service provider’s discretion to identify what online content is considered “otherwise objectionable,” and held that it is not limitless.[6]

Plaintiff Enigma and defendant Malwarebytes are direct competitors: they both provide software that helps internet users filter unwanted content from their computers.[7] Enigma alleged that Malwarebytes configured its software to block users from accessing Enigma’s software in order to divert Enigma’s customers, in violation of New York state law and the Lanham Act’s false advertising provision.[8] Malwarebytes moved to dismiss Enigma’s complaint, claiming that the CDA gives providers like Malwarebytes unfettered discretion to decide what is “otherwise objectionable” and therefore what can be blocked.[9]

The Ninth Circuit rejected Malwarebytes’ argument and recognized a motive-based good-faith limitation to Section 230 of the CDA.[10] The court held that “providers do not have unfettered discretion to declare online content ‘objectionable,’” and that “blocking and filtering decisions that are driven by anticompetitive animus are not entitled to immunity under section 230(c)(2) [of the CDA].” [11] In light of that holding, the court reversed the dismissal of Enigma’s state and federal law claims and remanded for further proceedings.

Amici representing the technology industry opposed reading a good-faith limitation into Section 230 of the CDA.[12] Their arguments were largely rejected by the Ninth Circuit. The Electronic Frontier Foundation argued, among other things, that the Enigma decision, by “exposing filtering tool providers to new legal liability, as well as the costs and burdens of litigation,” will harm internet users by chilling the development of online filtering tools, thus giving users “less robust and fewer filtering tools to choose from.”[13] Whether or not the Enigma decision will have this chilling effect remains to be seen.

[1] No. 17-17351, --- F.3d ---, 2019 WL 7373959 (9th Cir. Dec. 31, 2019).

[2] 47 U.S.C. § 230.

[3] The amicus brief filed by the Internet Association is available at https://www.swlaw.edu/sites/default/files/2020-01/03_IA%20Amicus%20Brief%20%28Enigma%29.pdf. The amicus brief filed by the Electronic Frontier Foundation and Cauce North America is available at https://www.eff.org/files/2019/11/08/2019-11-06_enigma_v_malwarebytes_-_eff_cauce_amicus_brief_stamped.pdf.

[4] No. 17-17351, --- F.3d ---, 2019 WL 7373959 (9th Cir. Dec. 31, 2019).

[5] 47 U.S.C. § 230(c)(2)(A) (emphasis added).

[6] 2019 WL 7373959 at *7-8.

[7] Id. at *4.

[8] Id.

[9] Id. at *5, 7.

[10] Id. at *7-8.

[11] Id. at *4.

[12] See supra n. 3.