GoDaddy.com, LLC v. Hollie Toups

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-13-00285-CV
_________________
GODADDY.COM, LLC, Appellant
V.
HOLLIE TOUPS, ET AL, Appellees
________________________________________________________________________
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D-130018-C
________________________________________________________________________
OPINION
GoDaddy.com, LLC (“GoDaddy”) filed a petition in this Court seeking an
order permitting an interlocutory appeal of the trial court’s order denying
GoDaddy’s motion to dismiss plaintiffs’ claims on the basis that such claims are
barred by section 230 of the Communications Decency Act (the “CDA”). See 47
U.S.C. § 230. We granted GoDaddy’s request to file an interlocutory appeal. After
consideration of the appeal, we reverse the trial court’s order.
1
I. BACKGROUND
Plaintiffs filed the underlying action on behalf of a putative class of women
who allege that other defendants, not a party to this appeal, who owned two
“revenge porn” websites, published sexually explicit photographs of plaintiffs
without their permission or consent. GoDaddy, as an interactive computer service
provider, hosted the revenge porn websites. In their brief to this Court, plaintiffs
admit that GoDaddy did not create the defamatory and offensive material at issue.
Plaintiffs argue that because GoDaddy knew of the content, failed to remove it, and
then profited from the activity on the websites, GoDaddy is jointly responsible for
plaintiffs’ damages. In their petition, plaintiffs allege that these revenge websites
“engage[d] in the publication of obscenity and child pornography” in violation of
Texas Penal Code. Plaintiffs further allege that GoDaddy hosted the websites
despite having knowledge that the developers were engaged in illegal activities.
Plaintiffs assert causes of action against GoDaddy “for intentional infliction of
emotional distress, for its severe, extreme, intentional, and unlawful misconduct in
violation of the Texas Penal [Code], and for its gross negligence in violation of
Texas Penal Code[.]” Plaintiffs further contend,
[b]y its knowing participation in these unlawful activities, GoDaddy
has also committed the intentional Texas tort of invasion of privacy
upon these Plaintiffs, as well as . . . intrusion on Plaintiffs’ right to
seclusion, the public disclosure of their private facts, the wrongful
appropriation of their names and likenesses, false light invasion of
2
Plaintiffs’ privacy, and a civil conspiracy . . . to perpetrate these
intentional state law torts.
GoDaddy filed a motion to dismiss pursuant to Rule 91a of the Texas Rules
of Civil Procedure. In its memorandum of law filed in support of its motion to
dismiss, GoDaddy argued that it is immune from civil liability for plaintiffs’ claims
under section 230 of the CDA because GoDaddy is a provider of interactive
computer services and cannot be treated as a publisher of content created by a third
party. Plaintiffs responded that the websites were “‘revenge porn’ websites” and by
their nature not protected by the First Amendment; and, therefore, the website
owners were not entitled to immunity under the CDA. Plaintiffs further argued
that the CDA does not preempt their state law tort claims. After a hearing, the trial
court denied GoDaddy’s motion to dismiss.
GoDaddy filed a motion to certify the trial court’s order denying the motion
to dismiss for interlocutory review in accordance with Rule 168 of the Texas Rules
of Civil Procedure and section 51.014(d) of the Texas Civil Practice and Remedies
Code. The trial court certified the following issues for interlocutory appeal to this
Court:
(1) [W]hether immunity under Section 230 of the Communications
Decency Act (the “CDA”) bars each of the claims asserted against
[GoDaddy] as a matter of law based on Plaintiffs’ admission that
[GoDaddy] did not create, develop, or publish the content at issue;
and
3
(2) [W]hether, as a matter of law, Plaintiffs have alleged facts that, if
true, state a claim against [GoDaddy].
This appeal followed.
II. STANDARD OF REVIEW
Rule 91a of the Texas Rules of Civil Procedure allows a party to move the
court to dismiss a groundless cause of action. Tex. R. Civ. P. 91a. The rule
provides in pertinent part:
[A] party may move to dismiss a cause of action on the grounds that it
has no basis in law or fact. A cause of action has no basis in law if the
allegations, taken as true, together with inferences reasonably drawn
from them, do not entitle the claimant to the relief sought. A cause of
action has no basis in fact if no reasonable person could believe the
facts pleaded.
Tex. R. Civ. P. 91a.1. We review the trial court’s ruling on a question of law de
novo. See El Paso Nat’l Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312
(Tex. 1999). Before Rule 91a, Texas procedure did not have a counterpart to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Fort Bend Cnty. v. Wilson, 825
S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.] 1992, no writ). In 2011, this
deficiency was remedied when the Legislature promulgated section 22.004(g) of
the Texas Government Code, which provides that the “supreme court shall adopt
rules to provide for the dismissal of causes of action that have no basis in law or
fact on motion and without evidence.” See Tex. Gov’t Code Ann. § 22.004(g)
(West 2013). While not identical, Rule 91a is analogous to Rule 12(b)(6);
4
therefore, we find case law interpreting Rule 12(b)(6) instructive. See Tex. R. Civ.
P. 91a; Fed. R. Civ. P. 12(b)(6).
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon
which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). For a complaint to survive
a Rule 12(b)(6) motion to dismiss, it must contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Facial plausibility requires facts that allow the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Essentially, under the federal rules,
the complaint is liberally construed in favor of the plaintiff and all well-pleaded
facts are taken as true. Ashcroft, 556 U.S. at 678-79; Erickson v. Pardus, 551 U.S.
89, 94 (2007). That said, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at
678. Likewise, in determining whether the trial court erred in denying a
defendant’s motion to dismiss, we take all plaintiff’s allegations as true and
consider whether a plaintiff’s petition contains “enough facts to state a claim to
relief that is plausible on its face.” See Twombly, 550 U.S. at 570. Rule 12(b)(6)
dismissal is appropriate if the court determines beyond doubt that the plaintiff can
prove no set of facts to support a claim that would entitle him to relief. Scanlan v.
Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir.2003). Just as a motion to dismiss
5
for failure to state a claim under Rule 12(b)(6) is a proper vehicle to assert a claim
of immunity under the federal rules, a motion to dismiss under Rule 91a is a proper
vehicle to assert an affirmative defense of immunity under section 230 in the state
court. See Imbler v. Pachtman, 424 U.S. 409, 416 (1976) (prosecutorial immunity);
Mowbray v. Cameron Cnty., 274 F.3d 269, 276, 279 (5th Cir. 2001) (prosecutorial
immunity and witness immunity).
On appeal, GoDaddy argues that the trial court erred in denying its motion to
dismiss under Rule 91a because it is immune from suit for plaintiffs’ asserted
causes of action. Plaintiffs contend that their claims against GoDaddy are not
precluded by the CDA because their state law intentional tort causes of action stem
from GoDaddy’s knowledge of the illegal content of the websites and its refusal to
shut the websites down. Plaintiffs further assert that GoDaddy is not entitled to
immunity under section 230 of the CDA because the underlying content is
unlawful or not entitled to First Amendment protection.
III. ANALYSIS
To support its argument that it is entitled to immunity, GoDaddy relies on
the following language in section 230:
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.
6
47 U.S.C. § 230(c)(1).1 The statute defines an “‘interactive computer service’” as
“any information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet[.]” Id. §
230(f)(2). The statute defines an “‘information content provider’” as “any person
or entity that is responsible, in whole or in part, for the creation or development of
1
Subsection (c) of section 230 of the CDA states in full:
(c) Protection for “good samaritan” blocking and screening of offensive
material
(1) Treatment of publisher or speaker
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.
(2) Civil liability
No provider or user of an interactive computer service shall be held
liable on account of --
(A) any action voluntarily taken in good faith to restrict access to
or availability of material that the provider or user considers to
be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such
material is constitutionally protected; or
(B) any action taken to enable or make available to information
content providers or others the technical means to restrict access
to material described in paragraph (1).
47 U.S.C. § 230(c).
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information provided through the Internet or any other interactive computer
service.” Id. § 230(f)(3).
GoDaddy asserts that it is a provider of an interactive computer service as
defined by the CDA, that the content at issue was provided by another information
content provider, and plaintiffs’ allegations improperly seek to treat GoDaddy as a
publisher of the content posted on the websites by third parties. Plaintiffs argue
that GoDaddy is not entitled to immunity because section 230 does not preempt
state law intentional torts, and because the immunity provision in section 230 only
applies if the website content qualifies for protection under the First Amendment.
Plaintiffs argue that the CDA “does not protect conduct that is illegal or in
violation of a federal or state penal statute.” We address these arguments in turn.
A. Survival of State Law Intentional Tort Claims
Citing our opinion in Milo v. Martin, 311 S.W.3d 210 (Tex. App.—
Beaumont 2010, no pet.), plaintiffs assert that we have previously held that the
CDA does not preempt state law intentional torts. Plaintiffs’ reliance on Milo is
misplaced. In Milo, plaintiffs filed suit against individual defendants, who ran a
website called “The Watchdog[,]” seeking damages resulting from the alleged
publication of derogatory comments that were posted by anonymous users on the
website’s “‘Guest Book.’” 311 S.W.3d at 211-12. The Watchdog filed a no
evidence motion for summary judgment arguing that section 230 of the CDA
8
prevented plaintiffs from asserting claims against The Watchdog that treated it as a
publisher of the comments made on the guest book. Id. at 212. On appeal of the
trial court’s grant of summary judgment in favor of The Watchdog, we explained
that section 230 generally controls claims regarding an internet service provider’s
republication of a third party’s statement. Id. at 214. We recognized that the
federal statute “‘overrides the traditional treatment of publishers, distributors, and
speakers under statutory and common law.’” Id. at 214-15 (quoting Batzel v. Smith,
333 F.3d 1018, 1026 (9th Cir. 2003)). We noted the broad application of section
230 in federal courts and stated that in enacting section 230 “Congress apparently
made a choice ‘not to deter harmful online speech through the separate route of
imposing tort liability on companies that serve as intermediaries[.]’” Id. at 215
(quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). We
explained:
Regardless of the grave potential that false and defamatory
posts can have on the lives of its citizens, Congress apparently
decided to prevent states from utilizing state libel law to impose
liability on website providers when they republish false and
defamatory content created and developed by third parties without the
internet service provider’s material involvement.
Id. at 218. We concluded The Watchdog could not be held liable for the posting of
slanderous comments because there was no evidence that it was an information
content provider or that it otherwise developed the offensive posts. Id. at 217.
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In support of their claim for intentional infliction of emotional distress, the
plaintiffs in Milo also alleged that The Watchdog’s failure to respond to their
request to remove the posts constituted extreme and outrageous conduct. Id. at
218. Significantly, we expressly refrained from answering the question of whether
plaintiffs’ state law claim for intentional infliction of emotional distress was
outside the scope of section 230, stating that it was “a matter we need not decide”
because there was no summary judgment evidence to support plaintiffs’ allegation
that The Watchdog’s failure to remove the posts constituted extreme and
outrageous conduct. Id. at 217-18. We noted our concern “that section 230 does
not provide a right to request a website’s owner to remove false and defamatory
posts placed on a website by third parties, and does not provide the injured person
with a remedy in the event the website’s owner then fails to promptly remove
defamatory posts[.]” Id. at 218. We did not hold, as plaintiffs contend, that
plaintiffs’ state law claims were outside the scope of section 230’s immunity
provision. Id.2
2
In their appellate brief, plaintiffs cite to and rely on the concurring opinion
in Milo to support their argument that this Court has previously ruled on this issue.
However, a concurring opinion has no precedential value and does not bind this
Court. See Live Oak Cnty. v. Lower Nueces River Water Supply Dist., 446 S.W.2d
14, 20 (Tex. Civ. App.—Beaumont 1969, writ ref’d n.r.e.) (“We have not, in our
recitation of the holdings of the several courts, included the remarks found in the
concurring opinion on the Summary Judgment Appeal . . . . It has been said that a
concurring opinion has no binding effect as precedent since it represents only the
10
Plaintiffs also cite to Fair Hous. Counsel v. Roommates.com, LLC, 521 F.3d
1157 (9th Cir. 2008) and Cisneros v. Sanchez, 403 F. Supp. 2d 588 (S.D. Tex.
2005) in support of their argument that their intentional tort claims fall outside the
purview of section 230. Neither case supports plaintiffs’ contention. In
Roommates the court found the website operator was not entitled to immunity for
the website’s discriminatory questions, answer choices, and registration process
that the website operator designed and developed. 521 F.3d at 1164-1170, 1172.
As to this portion of the website content, the court concluded the website operator
was an “information content provider” as defined by section 230. Id. at 1164.
With regard to the “Additional Comments” section on the website, the court found
the website operator was entitled to immunity because that portion of the website
merely published comments made by third parties. Id. at 1173-74. In this case, it
is undisputed that GoDaddy acted only as a hosting company and did not create or
develop the third party content on the websites. Roommates is inapposite to the
present case.
Likewise, in Cisneros, the plaintiff sued the defendant “‘for his role in being
a source of the defamatory material’” on the website, alleging that he authored
some of the defamatory material, and that he “used his control of the website to
add and remove certain comments by others, effectively shaping the messages
personal views of the concurring judge and does not constitute the law of the
case.”)
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conveyed on the website.” Cisneros, 403 F. Supp. 2d at 590. The defendant
removed the case to federal court on the basis of complete preemption. Id. at 589-
90. In determining whether plaintiff’s claims were completely preempted by the
CDA, the court first considered whether plaintiff’s libel claim was precluded by
the CDA. Id. at 590. The court concluded that a valid libel claim had been alleged
against the defendant because section 230 “only prevents a provider from being
treated as the author of ‘information provided by another[,]’” and the defendant
had been sued as the author of the defamatory statements. Id.
The court then turned to the question of whether plaintiff’s libel claim was
completely preempted by the CDA, such that removal to federal court was proper.
Id. at 590-91. The court concluded that “the CDA is clearly not intended to
completely preempt state law in any given area because [section] 230(e)(3) is
narrowly tailored to allow state and local laws within the same field, so long as
they are consistent” with section 230. Id. at 592. The court held “a state law libel
claim seeking to hold the author of a defamatory statement liable for statements he
allegedly made is not preempted by the CDA[,]” and remanded the plaintiff’s libel
claim back to the state court. Cisneros, 403 F. Supp. 2d at 593. The court ignored
plaintiff’s claim for intentional infliction of emotional distress “because such a
claim cannot be brought independently in Texas and is wholly dependent on the
success of [p]laintiff’s libel claim.” Id. at 590 (citing Boyles v. Kerr, 855 S.W.2d
12
593, 594 (Tex. 1993)); see also Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816
(Tex. 2005) (noting that when plaintiff’s complaints fall within the purview of
other legal remedies, plaintiff cannot assert an intentional infliction of emotional
distress claim merely because those other avenues of relief are barred). It is
undisputed in this case that plaintiffs are not suing GoDaddy as the author or
creator of the website content. Cisneros lends no support to plaintiffs’ argument
that GoDaddy is not entitled to immunity from plaintiffs’ claims.
Plaintiffs argue that their intentional infliction of emotional distress claim is
not a “‘gap filler tort’” and can be brought independently when the victim has no
other recognized theory of redress. We note that here, the recognized theory of
redress appears to be a defamation claim. See Neely v. Wilson, 418 S.W.3d 52, 61
(Tex. 2013) (“[I]t is a well-settled legal principle that one is liable for republishing
the defamatory statement of another.”); Milo, 311 S.W.3d at 214 (“Under Texas
law, a person who repeats a defamatory statement made initially by another can be
held responsible for republishing the libelous statement.”); see also RESTATEMENT
(SECOND) OF TORTS §§ 576 (Harm Caused by Repetition), 577 (What Constitutes
Publication), 578 (Liability of Republisher), 581 (Transmission of Defamation
Published by Third Person) (1977). However, under the facts of this case, we need
not decide whether plaintiffs’ may bring their intentional infliction of emotional
distress claim independently of other recognized theories. All of plaintiffs’ claims
13
against GoDaddy stem from GoDaddy’s publication of the contested content, its
failure to remove the content, or its alleged violation of the Texas Penal Code for
the same conduct. Allowing plaintiffs’ to assert any cause of action against
GoDaddy for publishing content created by a third party, or for refusing to remove
content created by a third party would be squarely inconsistent with section 230.3
See 47 U.S.C. § 230(e)(3) (“[N]o liability may be imposed under any State or local
law that is inconsistent with this section.”); see also Zeran, 129 F.3d at 332-33
(concluding that the distributor theory of liability was “merely a subset” of
publisher liability, the court held that AOL was immune from suit for claims that it
was liable as a distributer when AOL was given notice of defamatory content
posted by a third party and unreasonably delayed removing it from the website).
The Ninth Circuit elaborated on this principle in Barnes v. Yahoo!, Inc., in
determining that Yahoo was immune from suit for plaintiff’s negligent undertaking
claim:
[A] plaintiff cannot sue someone for publishing third-party content
simply by changing the name of the theory from defamation to
negligence. Nor can he or she escape section 230(c) by labeling as a
“negligent undertaking” an action that is quintessentially that of a
publisher. . . . And what is the undertaking that Barnes alleges Yahoo
3
Moreover, allowing plaintiffs to bring a private cause of action against
GoDaddy for its alleged violations of the Texas Penal Code would be contrary to
legislative intent. See 47 U.S.C. § 230(a); Reeder v. Daniel, 61 S.W.3d 359, 362-
64 (Tex. 2001); see also Brown v. De La Cruz, 156 S.W.3d 560, 567 n.39 (Tex.
2004); A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex. App.—Houston
[1st Dist.] 2001, pet. denied).
14
failed to perform with due care? The removal of the indecent profiles
that her former boyfriend posted on Yahoo’s website. But removing
content is something publishers do, and to impose liability on the
basis of such conduct necessarily involves treating the liable party as a
publisher of the content it failed to remove.
570 F.3d 1096, 1102-03 (9th Cir. 2009). The court in Barnes concluded that failing
to remove or de-publish the offensive content constituted “publishing conduct”
from which Yahoo was immune from suit under the CDA. Id. at 1103 (quoting
Roommates, 521 F.3d at 1170-71); see Zeran, 129 F.3d at 332 (explaining that
communication of a defamatory statement and the failure to remove a defamatory
statement are publications, and “[i]n fact, every repetition of a defamatory
statement” constitutes publication).
Because GoDaddy acted only as an interactive computer service provider
and was not an information content provider with regard to the material published
on the websites, plaintiffs cannot maintain claims against GoDaddy that treat it as a
publisher of that material. Moreover, plaintiffs cannot circumvent the statute by
couching their claims as state law intentional torts.
B. Obscene or Illegal Nature of the Material
Plaintiffs spend a considerable portion of their brief arguing that GoDaddy
cannot receive immunity under section 230 for publishing content that is unlawful
or unprotected by the First Amendment. Plaintiffs contend the website’s content
does not qualify for First Amendment protection as legal pornography, and the
15
CDA “was never intended to bless criminal activities occurring on websites.”
Plaintiffs fail to cite to any authority that supports their position that only
constitutionally protected content gives rise to immunity under section 230.
There is no provision in the CDA that limits its application to suits involving
constitutionally protected material. See 47 U.S.C. § 230. Reading such an
exception into the statute would undermine its purpose.
The amount of information communicated via interactive computer
services is . . . staggering. The specter of tort liability in an area of
such prolific speech would have an obvious chilling effect. It would
be impossible for service providers to screen each of their millions of
postings for possible problems. Faced with potential liability for each
message republished by their services, interactive computer service
providers might choose to severely restrict the number and type of
messages posted. Congress considered the weight of the speech
interests implicated and chose to immunize service providers to avoid
any such restrictive effect.
Zeran, 129 F.3d at 331. In section 230, Congress set forth the specific policies
behind the enactment of the CDA:
It is the policy of the United States --
(1) to promote the continued development of the Internet and other
interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently
exists for the Internet and other interactive computer services,
unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize
user control over what information is received by individuals,
families, and schools who use the Internet and other interactive
computer services;
16
(4) to remove 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; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter
and punish trafficking in obscenity, stalking, and harassment by
means of computer.
47 U.S.C. § 230(b). A construction of the CDA that yields a broad application of
its provisions, without regard to the nature of the content at issue, is supported by
its stated policies. See id.
The plain language of the CDA also supports such an interpretation. See 47
U.S.C. § 230. The CDA provides that nothing in section 230 “shall be construed to
impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to
obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any
other Federal criminal statute.” Id. § 230(e)(1). Likewise, the CDA provides that
“[n]othing in this section shall be construed to prevent any State from enforcing
any State law that is consistent with this section.” Id. § 230(e)(3). Therefore, the
plain language of the statute contemplates application of immunity from civil suit
under section 230 for interactive computer service providers even when the posted
content is illegal, obscene, or otherwise may form the basis of a criminal
prosecution. See id. § 230(e)(1), (3); see also Doe v. Bates, No. 5:05-CV-91-DF-
CMC, 2006 WL 3813758, at **1, 3-5, 21-22 (E.D. Tex. 2006) (dismissing claims
17
against Yahoo for knowingly allowing the posting of child pornography in a
registered e-group); see also Doe v. GTE Corp., 347 F.3d 655, 657-661 (7th Cir.
2003) (holding plaintiffs’ claims against GTE for providing web hosting services
to sites such as “youngstuds.com,” at which unauthorized, hidden-camera video
footage taken of athletes were offered for sale, were barred under section 230); see
generally Barnes, 570 F.3d at 1098-99, 1105-1106 (holding plaintiff’s negligent
undertaking claim against Yahoo for failing to remove indecent profiles, posted by
plaintiff’s former boyfriend on a website, was barred under section 230); cf.
Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 647-48, 652 (E.D. Tex. 2006)
(holding plaintiffs’ state law claims against infoUSA, which stemmed from
unauthorized postings of plaintiffs’ names, address and telephone number on adult
entertainment websites, were barred under section 230).
In Bates, plaintiffs filed suit against Bates and Yahoo for violations of 18
U.S.C. § 2252A (a civil remedy available for violation of federal child
pornography laws), negligence, negligence per se, intentional infliction of
emotional distress, invasion of privacy, and civil conspiracy. Bates, 2006 WL
3813758, at *5. The plaintiffs alleged Yahoo had knowledge of an e-group called
“Candyman” that provided a forum for sharing, posting, emailing, and transmitting
hard-core, illegal child pornography. They asserted they could maintain a claim
against Yahoo under 18 U.S.C. § 2252A, for violation of federal criminal statutes.
18
Id. at **6, 20-22. The plaintiffs argued that the civil remedy available under
section 2252A was exempt from the immunity provision in section 230. Id. at *3.
In rejecting the plaintiffs’ argument, the court found that “immunity from all
private civil liability comports with the clear Congressional policies to avoid
disincentives to innovation and to encourage self-regulation. Congress made these
policies explicit in the language of the statute[.]” Id. The court elaborated:
Section 230 does not, as [p]laintiffs propose, provide that an
intentional violation of criminal law should be an exception to the
immunity from civil liability given to internet service providers. Such
a finding would effectively abrogate the immunity where a plaintiff
simply alleged intentional conduct. Instead, “lawsuits seeking to hold
a service provider liable for its exercise of a publisher’s traditional
editorial functions-such as deciding whether to publish, withdraw,
postpone or alter content-are barred.”
Id. at *4. The court concluded that “‘Congress decided not to allow private
litigants to bring civil claims based on their own beliefs that a service provider’s
actions violated the criminal laws.’” Id. at *5 (quoting Magistrate’s Report and
Recommendation). The court granted Yahoo’s motion to dismiss plaintiffs’ claims
and dismissed the case with prejudice. Id.
Plaintiffs’ contention that GoDaddy is not entitled to immunity from
plaintiffs’ state law claims because of the alleged obscene or unlawful nature of the
material posted on the websites is without merit. See Bates, 2006 WL 3813758, at
**1, 3-5, 22; see generally Barnes, 570 F.3d at 1098-99, 1106; see also GTE, 347
F.3d at 657-62.
19
C. Plaintiffs’ Request to Replead
Plaintiffs argue for the first time on appeal that GoDaddy violated its
internal policies, as set forth in its “Universal Terms of Service Agreement,” which
according to plaintiffs, prohibit the use of websites for any purpose that is illegal or
promotes or encourages illegal activity. Plaintiffs argue GoDaddy’s violation of its
service agreement “further [corroborates] the plausibility of [plaintiffs’] claims
against GoDaddy.” The service agreement plaintiffs rely on is not in the record
before us, and this argument is not properly before this Court. See Tex. R. App. P.
33.1. Based on the provisions of the alleged service agreement, plaintiffs request
that we permit them to replead their case after considering the merits of
GoDaddy’s appeal. We decline to do so.
We recognize federal courts often give plaintiffs at least one opportunity to
cure pleading deficiencies before dismissing a case under Rule 12(b)(6). Great
Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th
Cir. 2002). However, the courts do not grant leave to amend a complaint when the
claims being repled are unable to overcome the deficiencies that led to their
dismissal. See Simmons v. Sabine River Auth. La., 732 F.3d 469, 478 (5th Cir.
2013) (“Clearly, if a complaint as amended is subject to dismissal, leave to amend
need not be given.”) (internal quotation marks omitted). Because we have held that
GoDaddy is entitled to immunity from suit for its alleged conduct as an interactive
20
computer service provider, plaintiffs’ request to replead their claims against
GoDaddy, as indicated in their brief, would be futile. See id.
Were plaintiffs allowed to amend their petition to assert a further cause of
action against GoDaddy for allegedly violating the terms of its service agreement,
such claims would likewise be precluded by section 230. Plaintiffs contend that
GoDaddy’s knowledge of the illegal or defamatory nature of the content of the
websites and its subsequent failure or refusal to remove the offensive material or
otherwise shut the accounts down violated the terms of its service agreement.
However, as previously discussed the courts treat a party who intentionally and
unreasonably fails to remove defamatory matter that it knows to be exhibited on its
website as a publisher under the CDA, thus subject to the immunity provision.
Moreover, in this case, plaintiffs have already amended their petition three
times. Plaintiffs filed their second amended petition after GoDaddy filed its
motion to dismiss, but prior to the trial court’s hearing on the motion. Plaintiffs
filed their third amended petition after the trial court’s hearing and initial order
denying GoDaddy’s motion to dismiss, but prior to the trial court’s amended order
certifying the issues for interlocutory appeal. Plaintiffs relied on their third
amended petition in making their arguments to this Court. Therefore, plaintiffs
have been allowed an opportunity to reshape their claims in an effort to avoid
GoDaddy’s assertion of immunity under section 230. Allowing plaintiffs to once
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again replead their case, at this late stage, would be an inefficient use of the
parties’ and the court’s resources, would unduly prejudice GoDaddy, and would be
contrary to the policies set forth in the CDA. See Schiller v. Physicians Res. Grp.
Inc., 342 F.3d 563, 567 (5th Cir. 2003). Under these circumstances, we deny
plaintiffs’ request to replead their case. See Simmons, 732 F.3d at 478.
IV. CONCLUSION
Plaintiffs seek to hold GoDaddy liable as the publisher of the contested
website content; therefore, plaintiffs’ claims are barred under 47 U.S.C. § 230.
Even taking plaintiffs’ allegations as true, plaintiffs’ have failed to state a viable
claim against GoDaddy. We sustain both of GoDaddy’s appellate issues and
reverse the order of the trial court denying GoDaddy’s motion to dismiss. We
remand the cause to the trial court for entry of judgment in favor of GoDaddy.com,
LLC and for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
___________________________
CHARLES KREGER
Justice
Submitted on November 5, 2013
Opinion Delivered April 10, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
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