Florida Appeals Court Upholds § 230 Immunity in Doe v. AOL

(October 17, 1998)  The Florida Fourth District Court of Appeals affirmed a trial court decision which held, under Section 230 of the Telecommunications Act of 1996, that AOL is not liable for the statements made by a subscriber in an AOL chat room.  The Plaintiffs plan to appeal to the Florida Supreme Court.

Plaintiffs, Jane Doe and her minor son John Doe, filed suit in Florida on January 23, 1997, against Richard Russell and America Online.  Plaintiff alleged that Russell "lured John Doe (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 utilized AOL's "chat rooms" to market the photographs and videotapes, and to later sell a videotape to a man in Arizona."  (Quote from page one of slip Opinion; parentheses in original.)

The liability of Russell was not at issue in this appeal.  Rather, the court addressed the decision of the trial court to dismiss AOL pursuant to 47 U.S.C. § 230, among other grounds.  A ruling against AOL would have had major consequences for the Internet.  §230 is what protects online services, and anyone who provides bulletin boards, guest books, chat rooms, or other interactive services, from lawsuits based on what other people write.

Both this court, and the trial court which dismissed the Complaint against AOL, relied heavily on the Zeran opinion: See, decision of 4th Circuit Court of Appeals in  Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998).

However, the appeals court did certify several legal questions for review by the Florida Supreme Court, thus keeping the case alive.  Under Florida law, a party who has lost before the Court of Appeals can appeal to the Supreme Court only if the Appeals Court decides that the issues involved are of great public importance, and a further appeal is warranted.  The Court wrote:

"We deem the questions raised as to the application of section 230 of the Communications Decency Act to be of great public importance and certify the following questions to the Florida Supreme Court:

Whether section 230 of the Communications Decency Act applies to complaints filed after its effective date where the complaint alleges a cause of action based upon acts occurring prior to its effective date?

If the answer is in the affirmative, whether section 230 of the Communications Decency Act preempts Florida law?

And whether a computer service provider with notice of a defamatory third party posting is entitled to immunity under section 230 of the Communications Decency Act?"

Brian Smith, the attorney for the Plaintiff, stated that "I am disappointed that we lost, but am excited that we will be going to the Supreme Court."  He also stated that the facts of this case are different from those in the Zeran case.   He stated that "the important distinction between our case and Zeran is that this is criminal conduct and not defamation."

Patrick Carome heads up the legal team at the law firm of Wilmer Cutler & Pickering which is representing AOL in all of its Section 230 cases.  He stated after the ruling:

"We are hopeful that the Florida Supreme Court, like the two other Florida courts that have already taken a hard look at this question" (and other courts) "will find that AOL is immune from liability for what third parties say online."

"There is one other case that is kicking around that is in federal court in New Mexico," Carome added.  It is "a defamation suit involving an alleged error in some stock quote information that appeared through the America Online service."   He said that "America Online has moved for summary judgment on 230 grounds," and that "it is fully briefed and before the court."

AOL has won every Section 230 ruling to date.  The law is now fairly clear that ISPs, websites, and other interactive computer services are not liable for the statements made by third parties in their chat rooms and other online resources.