Vazquez v. Buhl ( 2014 )

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MITCHELL VAZQUEZ v. TERI BUHL ET AL.
(AC 35319)
DiPentima, C. J., and Keller and Mihalakos, Js.
Argued November 22, 2013—officially released May 13, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. David R. Tobin, judge trial
referee [motion to strike]; Hon. A. William Mottolese,
judge trial referee [motion for judgment].)
Ryan O’Neill, with whom, on the brief, was Mark
Sherman, for the appellant (plaintiff).
Erik Bierbauer, pro hac vice, with whom were Alan
Neigher and, on the brief, Sheryle S. Levine, for the
appellee (defendant NBCUniversal, Inc.).
Opinion
DiPENTIMA, C. J. In this appeal, we confront Con-
gress’ restrictions on defamation claims arising out of
the Internet. The plaintiff, Mitchell Vazquez, appeals
from the judgment of the trial court rendered after
the granting of the motion brought by the defendant
NBCUniversal Inc.,1 to strike counts two (defamation),
three (false light), and four (negligent infliction of emo-
tional distress) of the plaintiff’s complaint. On appeal,
the plaintiff claims that a motion to strike is not the
proper procedural vehicle to decide the applicability
of § 230 of the Communications Decency Act of 1996
(CDA), 47 U.S.C. § 230 et seq. The plaintiff further
claims that the trial court improperly granted the
motion to strike because it incorrectly interpreted the
‘‘provided by another information content provider’’
language of § 230 (c) (1). We affirm the judgment of
the trial court.2
The complaint alleges the following facts.3 In Decem-
ber, 2011, and January, 2012, Teri Buhl published sev-
eral online news articles containing defamatory
statements about the plaintiff on her website. On Janu-
ary 6, 2012, John Carney, a senior editor for cnbc.com,
published an online article entitled, ‘‘The Sex and
Money Scandal Rocking Hedge Fund Land’’ on
www.cnbc.com, a website owned and operated by the
defendant. Carney’s article referred to Buhl as a ‘‘vet-
eran financial reporter’’ who ‘‘knows her way around
the Connecticut hedge fund beat,’’ and urged viewers
to read Buhl’s articles by stating, ‘‘I don’t want to steal
Buhl’s thunder, so click on her report for the big reveal.’’
The word ‘‘report’’ was a hyperlink4 to Buhl’s online
articles containing the defamatory statements.5
On January 25, 2012, the plaintiff filed his five count
complaint against Buhl and the defendant.6 In count
two, the plaintiff alleged a per se defamation claim
against the defendant. He alleged that Carney’s article
‘‘published, distributed, endorsed and promoted’’ the
defamatory statements contained in Buhl’s articles
because it hyperlinked to Buhl’s articles, validated
Buhl’s credibility, and claimed that Buhl had ‘‘made
thunder by publishing her article.’’ (Internal quotation
marks omitted.) In count three, the plaintiff alleged a
false light claim.7 In count four, he alleged a negligent
infliction of emotional distress claim.
On April 16, 2012, the defendant moved to strike the
complaint, asserting, inter alia, that the CDA barred all
counts alleged against it. On May 25, 2012, the plaintiff
filed an objection to the motion to strike with an accom-
panying memorandum of law, to which he attached
Carney’s article.
The court heard oral argument on the motion, and
in a subsequent memorandum of decision, granted the
defendant’s motion to strike. The court first concluded
that a motion to strike was the appropriate vehicle to
address the applicability of the CDA. The court further
held that the defendant was protected under the CDA
because it was a provider of an interactive computer
service, the defamatory statements were created by
Buhl, another information content provider, and the
plaintiff sought to treat the defendant as the publisher
of the defamatory statements. On December 17, 2012,
the court granted the plaintiff’s motion for judgment in
favor of the defendant. This appeal followed.
We begin with the background of the CDA. Although
no Connecticut state court has done so, several other
state and federal courts have discussed the purpose
behind the CDA in great detail. See, e.g., Batzel v. Smith,
333 F.3d 1018, 1026–30 (9th Cir. 2003), cert. denied, 541
U.S. 1085, 124 S. Ct. 2812, 159 L. Ed. 2d 246 (2004);
Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.
1997), cert. denied, 524 U.S. 937, 118 S. Ct. 2341, 141
L. Ed. 2d 712 (1998). ‘‘Congress enacted the CDA as
Title V of the Telecommunications Act of 1996, Pub. L.
No. 104-104, primarily to protect minors from exposure
to obscene and indecent material on the Internet. See S.
Rep. No. 104-23, at 187–193 (1996) (noting that Congress
has been troubled by an increasing number of published
reports of inappropriate uses of telecommunications
technologies to transmit pornography, engage children
in inappropriate adult contact, terrorize computer net-
work users through electronic stalking and seize per-
sonal information) . . . .
‘‘At the same time, however, Congress was also con-
cerned with ensuring the continued development of the
Internet. See 47 U.S.C. § 230 (b). Section 230 . . . was
enacted based on a congressional concern that treating
providers of computer services the same way as tradi-
tional publishers would impede the development of the
Internet. Accordingly, Congress, [w]hether wisely or
not . . . made the legislative judgment to effectively
immunize providers of interactive computer services
from civil liability in tort with respect to material dis-
seminated by them but created by others. Blumenthal
v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998); see also
[Batzel v. Smith, supra, 333 F.3d 1026] (noting that, in
Section 230, Congress made a policy decision to treat
providers of third-party content on the Internet differ-
ently than non-electronic providers of third-party con-
tent, such as newspapers).’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Atlantic
Recording Corp. v. Project Playlist, Inc., 603 F. Supp.
2d 690, 699 (S.D.N.Y. 2009).
Section 230, in relevant part, provides that ‘‘[n]o pro-
vider 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). Likewise, it provides that ‘‘[n]o
cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent
with this section.’’ 47 U.S.C. § 230 (e) (3). Of relevance
here, it defines an ‘‘information content provider’’ to
be ‘‘any person or entity that is responsible, in whole or
in part, for the creation or development of information
provided through the Internet or any other interactive
computer service.’’ 47 U.S.C. § 230 (f) (3). It defines
an ‘‘interactive computer service’’ as ‘‘any information
service, system, or access software provider that pro-
vides or enables computer access by multiple users to
a computer server, including specifically a service or
system that provides access to the Internet and such
systems operated or services offered by libraries or
educational institutions.’’ 47 U.S.C. § 230 (f) (2). With
this statutory background in mind, we turn to the plain-
tiff’s specific claims.
I
The plaintiff first claims that the applicability of the
CDA should not have been decided on a motion to
strike. His premise for this argument is that to invoke
the CDA, the defendant must have pleaded it as a special
defense. The plaintiff also argues that he should not
have been required to predict and address the CDA
when pleading allegations in his complaint and should
have been afforded the opportunity to conduct discov-
ery. The defendant refutes such a premise and counters
that, on the face of the complaint, it was protected
under the CDA, and thus, a motion to strike was the
proper procedural vehicle in this matter. Alternatively,
the defendant argues that, should we treat the invoca-
tion of the CDA as a special defense, this case is analo-
gous to those where our Supreme Court has permitted
use of a motion to strike to determine issues of govern-
mental immunity. See, e.g., Violano v. Fernandez, 280
Conn. 310, 907 A.2d 1188 (2006). We conclude that the
defendant was not required to plead the CDA as a spe-
cial defense and that the plaintiff’s claims were properly
decided on a motion to strike.
We begin with a brief discussion of relevant legal
principles. ‘‘The purpose of a motion to strike is to
contest . . . the legal sufficiency of the allegations of
any complaint . . . to state a claim upon which relief
can be granted. . . . [S]ee Practice Book § 10-39. A
motion to strike challenges the legal sufficiency of a
pleading, and, consequently, requires no factual find-
ings by the trial court. . . . We take the facts to be
those alleged in the complaint . . . and we construe
the complaint in the manner most favorable to sus-
taining its legal sufficiency. . . . Thus, [i]f facts prov-
able in the complaint would support a cause of action,
the motion to strike must be denied. . . . A motion to
strike is properly granted if the complaint alleges mere
conclusions of law that are unsupported by the facts
alleged.’’ (Citations omitted; internal quotation marks
omitted.) Fort Trumbull Conservancy, LLC v. Alves,
262 Conn. 480, 498, 815 A.2d 1188 (2003).
By comparison, ‘‘[a]s a general rule, facts must be
pleaded as a special defense when they are consistent
with the allegations of the complaint but demonstrate,
nonetheless, that the plaintiff has no cause of action.
. . . No facts may be proved under either a general or
special denial except such as to show that the plaintiff’s
statements of fact are untrue. Facts which are consis-
tent with such statements but show, notwithstanding,
that the plaintiff has no cause of action, must be spe-
cially alleged. . . . Practice Book § 10-50. If a party
seeks to introduce evidence under a denial which is
consistent with a prima facie case, but nevertheless
would tend to destroy the cause of action, the new
matter must be affirmatively pleaded as a special
defense.’’ (Citation omitted; internal quotation marks
omitted.) Mitchell v. Guardian Systems, Inc., 72 Conn.
App. 158, 166–67, 804 A.2d 1004, cert. denied, 262 Conn.
903, 810 A.2d 269 (2002).
Because this claim raises an issue of law over whether
the appropriate procedural vehicle was used, our
review is plenary. See Multari v. Yale-New Haven Hos-
pital, Inc., 145 Conn. App. 253, 258, 75 A.3d 733 (2013);
see also Larobina v. McDonald, 274 Conn. 394, 399–402,
876 A.2d 522 (2005). We conclude that the applicability
of the CDA was properly decided on a motion to strike.
Here, the invocation of the CDA did not require a special
defense because the defendant did not have to plead
any facts to demonstrate that the plaintiff had no cause
of action. See Mitchell v. Guardian Systems, Inc.,
supra, 72 Conn. App. 166–67. The plaintiff conceded
that the defendant was a ‘‘provider of an interactive
computer service.’’ He further conceded that his claims
sought to treat the defendant as a publisher or speaker.
And as we conclude in part II of this opinion, the defam-
atory statements had been ‘‘provided by another infor-
mation content provider.’’ Accordingly, the plaintiff’s
allegations were legally insufficient to overcome the
exception to liability under the CDA. See 47 U.S.C. § 230
(c) (1) and (d) (3).
Nonetheless, the plaintiff argues that whether the
defendant is protected under the CDA is a question of
fact that cannot be fairly resolved on a motion to strike.
According to the plaintiff, deciding the CDA issue at
the pleadings stage unfairly deprived him of the oppor-
tunity to conduct discovery and have such questions
answered as: ‘‘Did Mr. Carney agree with Buhl in
advance to add language which would enhance her
credibility and draw additional attention to the [d]efam-
atory [a]rticle?’’ or ‘‘Did Mr. Carney promise Buhl that
he would publicize the [d]efamatory [a]rticle in
exchange for something of value to Mr. Carney.’’ We
disagree for reasons set forth in Violano v. Fernandez,
supra, 280 Conn. 324–26.
In a comparable context, the court in Violano
addressed whether liability under the doctrine of quali-
fied governmental immunity could be resolved on a
motion to strike. The court determined that ‘‘[w]here
it is apparent from the face of the complaint that the
municipality was engaging in a governmental function
while performing the acts and omissions complained
of by the plaintiff, the defendant is not required to plead
governmental immunity as a special defense and may
attack the legal sufficiency of the complaint through a
motion to strike.’’ (Internal quotation marks omitted.)
Id., 321. In rejecting a claim that such a practice was
unfair because it precluded discovery, the court sup-
ported its conclusion by observing that the plaintiffs
could have asked to stay temporarily the motion to
strike pending limited discovery, could have objected
to the motion on the ground that they needed the oppor-
tunity to plead additional facts, or could have sought
to revise their complaint to allege facts that would bring
the complained of acts within the recognized excep-
tions to qualified governmental immunity. Id., 325–26.
Here, the plaintiff had similar opportunities. He could
have requested limited discovery, could have asked for
time to plead additional facts, and could have sought
to revise his complaint to allege additional facts, either
after the motion to strike was filed or after the court
granted the motion. See id., 326; Practice Book § 10-
44. Having declined these opportunities, the plaintiff
cannot now claim unfairness.
For these reasons, the court did not err when it con-
cluded that the applicability of the CDA could properly
be decided on a motion to strike.
II
We now turn to the interpretation of the relevant
provision of the CDA. The parties agree that the defen-
dant is a provider of an ‘‘interactive computer service’’
because it is a website operator. See Fair Housing
Council of San Fernando Valley v. Roommates.com,
LLC, 521 F.3d 1157, 1162 n.6 (9th Cir. 2008) (‘‘the most
common interactive computer services are websites’’);
Universal Communication Systems, Inc. v. Lycos, Inc.,
478 F.3d 413, 419 (1st Cir. 2007) (website ‘‘operators
. . . are providers of interactive computer services
within the meaning of Section 230’’). The parties also
agree that the plaintiff seeks to treat the defendant as
a ‘‘publisher or speaker’’ of the allegedly actionable
statements. The dispute between the parties focuses
on the phrase ‘‘provided by another information content
provider’’ in § 230 (c) (1). In part II A of this opinion,
we consider the meaning of the phrase ‘‘provided by,’’
and in part II B of this opinion, the meaning of the
phrase ‘‘information content provider.’’
We begin by setting forth the appropriate standard
of review and the process by which we interpret federal
statutes. Statutory construction is a question of law
and, therefore, our review is plenary. See, e.g., Mayfield
v. Goshen Volunteer Fire Co., 301 Conn. 739, 744, 22
A.3d 1251 (2011). ‘‘With respect to the construction and
application of federal statutes, principles of comity and
consistency require us to follow the plain meaning rule
for the interpretation of federal statutes because that
is the rule of construction utilized by the United States
Court of Appeals for the Second Circuit. . . . Dark-
Eyes v. Commissioner of Revenue Services, 276 Conn.
559, 571, 887 A.2d 848, cert. denied, 549 U.S. 815, 127
S. Ct. 347, 166 L. Ed. 2d 26 (2006). If the meaning of
the text is not plain, however, we must look to the
statute as a whole and construct an interpretation that
comports with its primary purpose and does not lead
to anomalous or unreasonable results.’’ (Internal quota-
tion marks omitted.) Cambodian Buddhist Society of
Connecticut, Inc. v. Planning & Zoning Commission,
285 Conn. 381, 400–401, 941 A.2d 868 (2008).
A
The plaintiff argues that the words ‘‘provided by’’
imply that a ‘‘provider or user of an interactive computer
service’’ can invoke the protection of § 230 (c) (1) only
where, unlike here, ‘‘information’’ has been directly
transmitted to them in their role as an interactive com-
puter service provider. See 47 U.S.C. § 230 (c) (1). So,
for example, according to the plaintiff’s construction,
the defendant would have been able to invoke the pro-
tection of § 230 (c) (1) had Buhl directly transmitted,
posted, or ‘‘provided’’ her article to it as operator of a
chat room, message board, blog, or website; but not
where the defendant itself discovered the articles and
posted a hyperlink to them on its website. We are
not persuaded.
We iterate the relevant language of the statute. Sec-
tion 230 (c) (1) provides: ‘‘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.’’ According to
one dictionary, the definition of ‘‘provide’’ is to: ‘‘make
(something) available’’ or ‘‘supply (something that is
wanted or needed) . . . .’’ Merriam-Webster’s Colle-
giate Dictionary (11th Ed. 2003). This ordinary meaning
of ‘‘provided’’ is clarified within the context of a library.
When it places books on its shelves, a library provides
them to its readers. This does not change when it later
checks them out to individual readers. Under both sce-
narios, it has provided its books; all that has changed
in the second scenario is that we know specifically to
whom it provided the books. In this case, as when
the library places books on its shelves, Buhl provided,
without knowing specifically to whom, the allegedly
defamatory statements by posting them to her website.
Of course, if Buhl had directly posted the defamatory
statements on the defendant’s website, she also would
have provided the statements. That ‘‘provided’’ can
refer to the specific ‘‘provider or user’’ seeking the pro-
tection of § 230 (c) (1) does not mean it must do so.
Thus, the meaning of ‘‘provided’’ in § 230 (c) (1),
although not plain and unambiguous, is broader than
the plaintiff maintains.
The plaintiff argues, however, that his narrow reading
of ‘‘provided’’ must be correct because Congress could
have used words like ‘‘created’’ or ‘‘originated,’’ if it had
intended to shelter providers or users in cases where
information was not directly transmitted to them. We
are not persuaded. The fact that Congress could have
used clearer words does not mean that we can ignore
the most natural reading of the words it did use. Our
role is to interpret statutes as they were written, not
as they could have been written.
Furthermore, case law provides little support for the
plaintiff’s position. Although few courts have directly
interpreted the words ‘‘provided by,’’ many courts have
confronted comparable factual scenarios and consis-
tently have found interactive computer service provid-
ers protected by § 230. In Atlantic Recording Corp. v.
Project Playlist, Inc., supra, 603 F. Supp. 2d 690, for
example, the United States District Court for the South-
ern District of New York addressed whether a defendant
website operator was protected under § 230 (c) (1)
when it searched the Internet for songs on third party
websites and then provided hyperlinks to those songs.
Id., 692, 699. The court there held that the defendant
was entitled to protection under § 230 and agreed with
other courts that had held that ‘‘an interactive computer
service is not liable where it posts or links to a third-
party’s content.’’ Id., 700; id., 701–702. Similarly, in Par-
ker v. Google, Inc., 422 F. Supp. 2d 492 (E.D. Pa. 2006),
a plaintiff brought various tort actions seeking to hold
Google liable for, among other things, that its well estab-
lished search engine, upon a user’s query, produces a
list of hyperlinks to third party content. Id., 500–501.
The United States District Court for the Eastern District
of Pennsylvania explained that Google ‘‘archived,
cached, or simply provided access to content that was
created by a third party’’ and, thus, concluded that it was
protected by § 230 (c) (1). Id., 501. Finally, in Barrett v.
Fonorow, 343 Ill. App. 3d 1184, 799 N.E.2d 916 (2003),
leave to appeal denied, 207 Ill. 2d 597, 807 N.E.2d 973
(2004), a case that is similar to the present one, a web-
site operator was afforded protection under § 230
despite personally posting to his website ten articles,
written by a third party, containing allegedly defama-
tory content.
We find no appreciable difference between this case
and the case law cited. To be sure, those cases did not
directly consider the language at issue here. They did,
however, consider analogous factual allegations, and
thus, indirectly rejected the arguments presented here.
In any event, these cases are persuasive authority,
although not controlling authority, in support of our
interpretation of the statutory language.
Nevertheless, the plaintiff seeks to depart from this
precedent and cites Batzel v. Smith, supra, 333 F.3d
1018, in support of his claim. There, the editor of an
e-mail newsletter received an allegedly defamatory
e-mail from a third party. Id., 1021. After making minor
changes, the editor incorporated the third party’s e-mail
into the next issue of his newsletter, which he then
e-mailed to his subscribers. Id., 1022. In a defamation
action against the editor, the United States Court of
Appeals for the Ninth Circuit had occasion to interpret
the word ‘‘provided’’ in § 230 (c) (1), because the third
party claimed that he never intended to have his e-mail
posted online. Id., 1032. A split panel held that ‘‘a service
provider or user is immune from liability under § 230
(c) (1) when a third person or entity that created or
developed the information in question furnished it to
the provider or user under circumstances in which a
reasonable person in the position of the service provider
or user would conclude that the information was pro-
vided for publication on the Internet or other ‘inter-
active computer service.’ ’’ (Emphasis added.) Id., 1034.
The plaintiff’s reliance on Batzel is misplaced. The
Ninth Circuit was not concerned with whether the third
party had directly transmitted the e-mail to the editor
of the newsletter (because he did), but instead, was
cautious about expanding the scope of § 230 (c) (1) for
‘‘speech never meant to be broadcast over the Internet.’’
Id., 1033. It was in this context that the court reasoned:
‘‘ ‘[p]rovided’ suggests, at least, some active role by the
‘provider’ in supplying the material to a ‘provider or
user of an interactive computer service.’ ’’ Id., 1032.
Because Buhl’s article was undoubtedly meant to be
disseminated on the Internet, the same concern does
not exist here. As a result, Batzel is distinguishable.
Our interpretation also squares with the findings and
policies expressed by Congress in promulgating § 230.
In its findings, Congress commended the ‘‘rapidly devel-
oping array’’ of Internet services for offering ‘‘users a
great degree of control over the information that they
receive, as well as the potential for even greater control
in the future as technology develops.’’ See 47 U.S.C.
§ 230 (a) (1) and (2). Congress further explicated its
policy as one to ‘‘promote the continued development of
the Internet’’ and ‘‘preserve the vibrant and competitive
free market that presently exists for the Internet . . .
unfettered by Federal or State regulation . . . .’’ See
47 U.S.C. § 230 (b) (1) and (2).
These expressions of congressional intent reflect a
federal policy favoring the unfettered development of
the Internet. See Batzel v. Smith, supra, 333 F.3d 1027–
28. Congress, in 1996, likely could not have anticipated
the advent and popularity of Twitter, Facebook or eBay,
the shift from print to online news, the proliferation of
search engines, or the myriad other developments of the
Internet. Indeed, Congress intentionally drafted § 230
without knowing precisely how the Internet would
evolve, but encouraging its ‘‘continued development.’’
For these reasons, we reject the plaintiff’s suggestion
that Congress intended to limit § 230 to only those situa-
tions where information is directly transmitted to a
provider of an interactive computer service. Congress
wrote § 230 with the view that the development of the
Internet would be unpredictable. Accordingly, § 230
encompasses a wide range of situations, including situa-
tions beyond those in which information is directly
transmitted to a provider. Our broader reading of ‘‘pro-
vided by’’ is in line with Congress’ stated findings
and policies.
On the basis of the statutory text, relevant case law,
and federal findings and policies stated previously, we
reject the plaintiff’s interpretation of ‘‘provided by’’ in
§ 230 (c) (1).8
B
The plaintiff finally claims that the defendant should
not be protected under § 230 (c) (1) because it became
an ‘‘information content provider.’’ See 47 U.S.C. § 230
(c) (1) (‘‘[n]o provider . . . shall be treated as the pub-
lisher or speaker of any information provided by
another information content provider’’ [emphasis
added]). Specifically, in a multileveled approach, the
plaintiff argues that the defendant became an ‘‘informa-
tion content provider’’ when it: (1) took active steps to
ensure the presentation of the defamatory statements
by finding Buhl’s articles over the Internet and deciding
to hyperlink to them; (2) amplified Buhl’s articles by
adding a ‘‘salacious’’ title and personal commentary
to its own article; and (3) endorsed and adopted the
defamatory statements by vouching for Buhl’s credibil-
ity and suggesting that ‘‘she made ‘thunder’ . . . .’’ We
find that these actions, individually or in combination,
did not transform the defendant into an information
content provider of the allegedly actionable statements.
‘‘An entity can be both an ‘interactive computer ser-
vice’ and an ‘information content provider.’ . . . How-
ever, ‘[t]he critical issue is whether . . . [the
interactive computer service] acts as an information
content provider with respect to the information’ at
issue. . . . While an overt act of creation of content
is easy to identify, determining what makes a party
responsible for the ‘development’ of content under
§ 230 (f) (3) is unclear, and the CDA does not define the
term.’’ (Citations omitted.) Ascentive, LLC v. Opinion
Corp., 842 F. Supp. 2d 450, 474 (E.D.N.Y. 2011).
Against this backdrop, we begin with the language
of 47 U.S.C. § 230 (f) (3), which provides in relevant
part: ‘‘The term ‘information content provider’ means
any person or entity that is responsible, in whole or in
part, for the creation or development of information
provided through the Internet or any other interactive
computer service.’’ 47 U.S.C. § 230 (f) (3). Three Courts
of Appeals have read that statutory language slightly
differently, but ultimately they are in general accord.
See Fair Housing Council of San Fernando Valley v.
Roommates.com, LLC, supra, 521 F.3d 1157; Federal
Trade Commission v. Accusearch, Inc., 570 F.3d 1187
(10th Cir. 2009) Universal Communication Systems,
Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007).
In a case concerning the liability, under the Fair Hous-
ing Act, of a website designed to pair lessors with les-
sees, the United States Court of Appeals for the Ninth
Circuit underscored the claim raised here. See Fair
Housing Council of San Fernando Valley v. Room-
mates.com, LLC, supra, 521 F.3d 1157. ‘‘It’s true that
the broadest sense of the term ‘develop’ could include
. . . just about any function performed by a website.
But to read the term so broadly would defeat the pur-
poses of section 230 by swallowing up every bit of the
immunity that the section otherwise provides. At the
same time, reading the exception for co-developers as
applying only to content that originates entirely with
the website . . . ignores the words ‘development . . .
in part’ in the statutory passage ‘creation or develop-
ment in whole or in part.’ 47 U.S.C. § 230 (f) (3) . . . .
We believe that both the immunity for passive conduits
and the exception for co-developers must be given their
proper scope and, to that end, we interpret the term
‘development’ as referring not merely to augmenting
the content generally, but to materially contributing
to its alleged unlawfulness.’’ (Emphasis altered.) Fair
Housing Council of San Fernando Valley v. Room-
mates.com, LLC, supra, 1167–68. Expounding on this
interpretation, the court later observed: ‘‘A website
operator who edits user-created content—such as by
correcting spelling, removing obscenity or trimming for
length—retains his immunity for any illegality in the
user-created content, provided that the edits are unre-
lated to the illegality. However, a website operator who
edits in a manner that contributes to the alleged illegal-
ity—such as by removing the word ‘not’ from a user’s
message reading ‘[Name] did not steal the artwork’ in
order to transform an innocent message into a libelous
one—is directly involved in the alleged illegality and
thus not immune.’’ (Emphasis in original.) Id., 1169.
Similarly, the United States Court of Appeals for the
First Circuit interpreted the language of § 230 (f) (3) in
Universal Communication Systems, Inc. v. Lycos, Inc.,
supra, 478 F.3d 413. The plaintiff there sought to hold
the defendant service provider liable as an ‘‘information
content provider,’’ in part, under a theory that its web-
site—which contained allegedly false and defamatory
postings—did not prevent individuals from using multi-
ple screen names and provided hyperlinks to other web-
sites with objective financial information, thereby
allowing individuals to spread misinformation more
credibly. Id., 420. The federal court rejected this theory,
explaining that ‘‘there is not even a colorable argument
that any misinformation was prompted by [the defen-
dant’s] registration process or its link structure.’’
(Emphasis added.) Id.
Additionally, the United States Court of Appeals for
the Tenth Circuit interpreted the language of § 230 (f)
(3) in a case involving a defendant that provided access
to confidential telephone information through its web-
site. See Federal Trade Commission v. Accusearch,
Inc., supra, 570 F.3d 1187. The defendant there con-
tended that it was not an ‘‘information content provider’’
because the confidential telephone information it pro-
duced for its customers ‘‘came originally from the tele-
communications carriers’’ and, thus, ‘‘it made nothing
new nor brought anything into existence.’’ Id., 1197–98.
After addressing the meaning of the words ‘‘responsi-
ble’’ and ‘‘development,’’ the federal court concluded
that ‘‘a service provider is responsible for the develop-
ment of offensive content only if it in some way specifi-
cally encourages development of what is offensive
about the content.’’ (Emphasis added; internal quota-
tion marks omitted.) Id., 1199. According to the court,
the defendant met this definition when it ‘‘solicited
requests for confidential information protected by law,
paid researchers to find it, knew that the researchers
were likely to use improper methods, and charged cus-
tomers who wished the information to be disclosed.’’
Id., 1201.
Ordinarily, Connecticut state courts seek guidance
from decisions of the United States Court of Appeals
for the Second Circuit because they carry particularly
persuasive weight in the interpretation of federal stat-
utes. See, e.g., Rodriguez v. Testa, 296 Conn. 1, 11, 993
A.2d 955 (2010). Although the Second Circuit has not
addressed the CDA, several District Courts within the
Second Circuit have interpreted § 230 (f) (3). Signifi-
cantly, they have offered interpretations of § 230 (f) (3)
consistent with those of the three Courts of Appeals.
See Doctor’s Associates, Inc. v. QIP Holder, LLC, United
States District Court, Docket No. 3:06-cv-1710 (VLB)
(D. Conn. February 19, 2010) (‘‘[a] reasonable jury may
well conclude that the Defendants did not merely post
the arguably disparaging content contained in the con-
testant videos, but instead actively solicited disparag-
ing representations about Subway and thus were
responsible for the creation or development of the
offending contestant videos’’ [emphasis added]); see
also Federal Trade Commission v. LeanSpa, LLC, 920
F. Supp. 2d 270, 276–77 (D. Conn. 2013); Ascentive, LLC
v. Opinion Corp., supra, 842 F. Supp. 2d 474–76.
The plaintiff does not challenge the interpretations
of the Courts of Appeals, but instead relies, in part, on
a series of other cases to support his claim. See Jones
v. Dirty World Entertainment Recordings, LLC, 840 F.
Supp. 2d 1008 (E.D. Ky. 2012); MCW, Inc. v. Badbusi-
nessbureau.com, LLC, United States District Court,
Docket No. Civ.A.3:02-CV-2727-G (N.D. Tex. April 19,
2004); Woodhull v. Meinel, 145 N.M. 533, 202 P.3d 126
(App. 2008), cert. denied, 145 N.M. 655, 203 P.3d 870
(2009). These cases, however, also track the interpreta-
tions of the Courts of Appeals. See Jones v. Dirty World
Entertainment Recordings, LLC, supra, 1012 (‘‘by rea-
son of the very name of the site, the manner in which
it is managed, and the personal comments of [the defen-
dant website operator], the defendants have specifi-
cally encouraged development’’ [emphasis added]);
MCW, Inc., v. Badbusinessbureau.com, LLC, supra,
United States District Court, Docket No. Civ.A.3:02-CV-
2727-G (defendants wrote and created disparaging and
defamatory headings, report titles, and messages and
‘‘actively solicit[ed]’’ other disparaging material
[emphasis added]); Woodhull v. Meinel, supra, 540
(‘‘Instead of merely editing an email from a third party,
Defendant apparently requested potentially defamatory
material for her own stated purpose of ‘making fun of’
Plaintiff. That material was incorporated into an overall
larger posting containing her own thoughts and contri-
butions.’’ [Emphasis added.]).
We conclude that the meaning of ‘‘development in
part,’’ as defined in case law interpreting the language
of § 230 (f) (3), covers conduct ranging from ‘‘material
contribution’’ to ‘‘solicitation’’ of the information at
issue. See Fair Housing Council of San Fernando Val-
ley v. Roommates.com, LLC, supra, 521 F.3d 1167–68;
Doctor’s Associates, Inc. v. QIP Holder, LLC, supra,
United States District Court, Docket No. 3:06-cv-1710
(VLB). The plaintiff has not alleged any actions, individ-
ually or in combination, from which to conclude that
the defendant ‘‘materially contributed,’’ ‘‘prompted,’’
‘‘specifically encouraged,’’ ‘‘apparently requested,’’ or
‘‘actively solicited’’ the defamatory statements in Buhl’s
articles. Rather, the actions alleged by the plaintiff are
fairly characterized by him to have ‘‘amplified,’’
‘‘endorsed,’’ and ‘‘adopted’’ those statements.
It is immaterial whether the defendant amplified,
endorsed, or adopted the defamatory statements,
because the defendant played no role in their composi-
tion. The plaintiff, for example, did not allege that the
defendant edited, altered or wrote any of the defama-
tory statements or any other part of Buhl’s articles.
He also did not allege that the defendant supervised,
communicated or collaborated with Buhl, either before
or after the publication of her articles. See Parisi v.
Sinclair, 774 F. Supp. 2d 310, 313, 317 (D.D.C. 2011)
(service providers who did not write, contribute to,
actively solicit, encourage or communicate with author
of allegedly defamatory statements were shielded by
§ 230); Barrett v. Fonorow, supra, 343 Ill. App. 3d
1196–97 (allegations that service provider posted alleg-
edly defamatory articles on its website ‘‘simply as it
found them’’ not sufficient to overcome protection of
§ 230). Likewise, the plaintiff did not allege that the
content or title of Carney’s article was defamatory.
To the contrary, the allegations address only the
defendant’s conduct after the actionable statements
were conceived, written and published by Buhl. Without
more, the allegations do not fall within the meaning
of ‘‘development in part,’’ as defined in the case law
interpreting the language of § 230 (f) (3). As a result,
the defendant was entitled to the protection of § 230
(c) (1) because it was not an ‘‘information content pro-
vider.’’ Accordingly, we reject the plaintiff’s challenge
to the court’s ruling on the motion to strike.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Teri Buhl also was named a defendant in the complaint, but subsequently,
the plaintiff withdrew the action as against her. In its brief, the defendant
states that its correct name is NBCUniversal Media, LLC. We refer to it in
this opinion as the defendant.
2
As an alternate ground for affirmance, the defendant claims that the
plaintiff has not proven as a matter of law that hyperlinking to defamatory
statements constitutes publication or publicity, which are common elements
underlying all torts in the complaint. The trial court did not reach this issue.
Because we affirm the judgment on claims raised by the plaintiff, we need
not either.
3
‘‘We take the facts to be those alleged in the complaint that has been
stricken and we construe the complaint in the manner most favorable to
sustaining its legal sufficiency. . . . Moreover, we note that [w]hat is neces-
sarily implied [in an allegation] need not be expressly alleged. . . . It is
fundamental that in determining the sufficiency of a complaint challenged
by a defendant’s motion to strike, all well-pleaded facts and those facts
necessarily implied from the allegations are taken as admitted. . . . Indeed,
pleadings must be construed broadly and realistically, rather than narrowly
and technically.’’ (Internal quotation marks omitted.) Violano v. Fernandez,
280 Conn. 310, 317–18, 907 A.2d 1188 (2006).
4
‘‘A hyperlink is a highlighted portion of text or an image that, when
selected or clicked on by the user, permits the user to go directly from the
[website] he or she is currently viewing to a different [website], without
first having to enter the domain name of the new [website].’’ OBH, Inc. v.
Spotlight Magazine, Inc., 86 F. Supp. 2d 176, 181 (W.D.N.Y. 2000).
5
In the complaint, the following statements were alleged to be defamatory:
(1) ‘‘[The plaintiff] was ordered to stay out of the Forex biz for five years
but he quickly integrated himself into another Forex shop that had some
trouble with regulators called GFX Group.’’
(2) ‘‘There is a forexsignals.net trading platform listed as a domestic LLC
under Pamela’s name in 2009 but it’s unclear if this is a front for Vazquez.
. . . Given his history of SEC and CFTC trading limitations I have to wonder
if Pamela is also now a forex broker or is just holding the license for her
boyfriend. What a great match that would be.’’
(3) ‘‘[The plaintiff] was ordered to stay out of CFTC-regulated businesses
in the U.S. for five years, which included not being allowed to do forex
transactions with a U.S. Citizen regardless of the country it cleared in, but
he quickly integrated himself into another Forex shop (Swiss Headquartered)
that had some trouble with regulators in London called GFX Capital. Swiss
registration records show he’s a director there.’’
(4) ‘‘In early 1996 [the plaintiff] was also sued for fraud by the SEC while
a trader for Bankers Trust; for lying to their clients about the value of
some derivative contracts the bank created and he sold.’’ (Internal quotation
marks omitted.)
6
The first count, not at issue here, alleged a per se defamation claim
against Buhl. The fifth count, later stricken without opposition, alleged a
claim for a permanent injunction.
7
‘‘A number of state and federal courts have applied the Restatement rule
that a false light invasion of privacy occurs if ‘(a) the false light in which
the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would
be placed.’ 3 Restatement (Second), Torts § 652E [1977] . . . .’’ (Citations
omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn.
107, 131, 448 A.2d 1317 (1982).
8
We recognize that putting our interpretation into practice has the poten-
tial to create harmful results. Consider, for example, Barnes v. Yahoo!, Inc.,
570 F.3d 1096 (9th Cir. 2009). There, the defendant interactive computer
service provider was protected by § 230 (c) (1); id., 1105; even though it
failed to remove from its website nude photographs of the plaintiff, posted
without her authorization, by her former boyfriend. Id., 1098–99. Although
not all cases have to accommodate such harsh results, it is the sting behind
cases like Barnes that can make faithful interpretation of statutes difficult.
Without further legislative action, however, there is little we can do in our
limited role but join with other courts and commentators in expressing our
concern with the statute’s broad scope.
‘‘Congress has granted providers and users of interactive computer ser-
vices total immunity under the CDA. . . . This license is clearly subject to
tremendous abuse, and the Court has serious misgivings about this Circuit’s
broad interpretation of § 230 immunity. The prospect of blanket immunity
for those who intentionally redistribute defamatory statements could have
widespread and potentially catastrophic consequences for individuals and
entities alike. Nevertheless, under the CDA the Court’s hands are tied.’’
Directory Assistants, Inc. v. Supermedia, LLC, 884 F. Supp. 2d 446, 453
(E.D. Va. 2012); see also Global Royalties, Ltd. v. Xcentric Ventures, LLC,
544 F. Supp. 2d 929, 933 (D. Ariz. 2008). The Internet is no longer the
burgeoning medium that it was in 1996. See Zeran v. America Online, Inc.,
supra, 129 F.3d 330. We question whether the main policy reasons underlying
the original enactment of § 230 remain relevant. Nevertheless, the language
of § 230 compels us to reject the plaintiff’s theory of liability unless and
until Congress amends the statute.