Cubby, Inc. v. CompuServe, Inc., Stratton Oakmont, Inc

Fourth Circuit's Zeran opinion, on whether "publisher" in subsection 230(c)(1) means only
"primary publisher" or both "primary publisher" and "distributor," also known as a "secondary
publisher," for purposes of defamation liability.
In our view, we need not resolve the dispute at all, because it has little to do with the
meaning of the statutory language. Section 230(c)(1) precludes courts from treating internet
service providers as publishers not just for the purposes of defamation law, with its particular
distinction between primary and secondary publishers, but in general. The statute does not
mention defamation, and we decline to read the principles of defamation law into it.
Leaving no stone unturned, Barnes reminds us that the statutory purpose of the Amendment
is to encourage websites affirmatively to police themselves, not to provide an excuse for doing
nothing. This argument from statutory purpose has more force to it, because section 230(c) is,
after all, captioned "Protection for 'good samaritan' blocking and screening of offensive
material." It would indeed be strange for a provision so captioned to provide equal protection as
between internet service providers who do nothing and those who attempt to block and screen
offensive material.
A closer look at the whole of section 230(c), we believe, makes sense of this apparent
contradiction. Subsection (c)(1), by itself, shields from liability all publication decisions,
whether to edit, to remove, or to post, with respect to content generated entirely by third parties.
Subsection (c)(2), for its part, provides an additional shield from liability, but only for "any
action voluntarily taken in good faith to restrict access to or availability of material that the
provider . . . considers to be obscene . . . or otherwise objectionable." Crucially, the persons who
can take advantage of this liability are not merely those whom subsection (c)(1) already protects,
but any provider of an interactive computer service. Thus, even those who cannot take advantage
of subsection (c)(1), perhaps because they developed, even in part, the content at issue, can take
advantage of subsection (c)(2) if they act to restrict access to the content because they consider it
obscene or otherwise objectionable. Additionally, subsection (c)(2) also protects Internet service
providers from liability not for publishing or speaking, but rather for actions taken to restrict
access to obscene or otherwise objectionable content.
Thus, we must reject Barnes' contention that it does violence to the statutory scheme to bar
her suit for negligent undertaking. To summarize, we hold that section 230(c)(1) bars Barnes'
claim, under Oregon law, for negligent provision of services that Yahoo undertook to provide.
The district court properly granted Yahoo's motion to dismiss that cause of action.
Barnes' complaint could also be read to base liability on section 90 of the Restatement
(Second) of Contracts, which describes a theory of recovery often known as promissory
estoppel. Liability for breach of promise is different from liability for negligent undertaking. The
"principal criteria" that determine "when action renders a promise enforceable" under this
doctrine are: "(1) a promise[;] (2) which the promisor, as a reasonable person, could foresee
would induce conduct of the kind which occurred[;] (3) actual reliance on the promise[;] (4)
resulting in a substantial change in position."
In most states, including Oregon, "'[p]romissory estoppel' is not a 'cause of action' in itself;
rather it is a subset of recovery based on breach of contract and serves as a substitute for
consideration." Thus, aside from consideration, ordinary contract principles usually apply. When
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