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GoDaddy gets out of Texas 'revenge porn' lawsuit

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Internet website provider GoDaddy.com LLC got removed today from a class action lawsuit brought by woman defamed through revenge porn website Texxan.com.

The Beaumont Court of Appeals reversed a trial court ruling that denied GoDaddy's motion to dismiss. GoDaddy claimed the federal Communications Decency Act (CDA) shields website providers from whatever third-party publishers post to the worldwide web.

Hollie Toups, then 32, filed the lawsuit in January 2013 on behalf of herself and other women. Sixteen other ladies joined the lawsuit because they had been harmed by ex-boyfriends, ex-husbands or strangers who posted nude or otherwise sexually explicit photographs of them.

Their lawsuit was widely reported in the media through such sites as Huffington Post, Slate and Forbes.

The women allege revenge porn websites are illegal because they post photographs and information of subjects without their permission. Their actions are a violation of privacy and theft of likeness, therefore they should not be protected by the CDA.

In summarizing the women's complaint, Ninth District Court of Appeals Justice Charles Kreger's opinion of April 10 stated, "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."

While the trial court denied GoDaddy's motion for summary judgment, it did certify two issues for the appeals court:

  • Whether immunity under the CDA bars each of the claims asserted as a matter of law based on plaintiffs' admission that GoDaddy did not create, develop or publish the content.
  • Whether plaintiffs have alleged facts that, if true, state a claim against GoDaddy.

Justice Kreger didn't see any way around the CDA immunity. The pertinent section of the law, Section 230, states: 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.

Kreger noted other high profile challenges against internet content providers based on these same elements have also failed.

In Barnes v. Yahoo! Inc., a 2005 case from the U.S. Court of Appeals for the Ninth Circuit, the court determined Yahoo was immune from a negligence claim for failing to remove indecent profiles posted by the plaintiff's former boyfriend.

In Doe v. GTE Corp., a 2003 federal case from the Seventh Circuit, the court barred claims against GTE for providing web hosting services to sites such as youngstuds.com, with sold unauthorized, hidden-camera video clips taken of athletes.

Kreger quoted from a 1997 Fourth Circuit case, Zeran v. Am. Online Inc., which delved into the reasoning of Congress in passing the CDA: Regardless of the grave potential that false and defamatory posts can have on the lives of its citizens, Congress apparently decided to prevent states fro 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.

"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," Kreger wrote.

Finally, Kreger recognized that the plaintiffs argued on appeal "for the first time" that GoDaddy violated its internal policies, which prohibit the use of websites for any purpose that is illegal or promotes or encourages illegal activity. Since that argument was not properly before the court, the plaintiffs sought to replead their case.

Kreger said no. He noted that the plaintiffs had already amended their complaint three times.

"Because we have held GoDaddy is entitled to immunity from suit for its alleged conduct as an interactive computer service provider, plaintiffs' request to replead their claims against GoDaddy ... would be futile," he said.

Plaintiffs in such cases try to keep internet service providers in the lawsuit because they typically have the deepest pockets. However, Kreger noted that plaintiffs still have a claim against Texxxan.com and other such websites that prey on the reputations of women.

"We note here, the recognized theory of redress appears to be a defamation claim," Kreger said. "It is well-settled legal principle that one is liable for republishing the defamatory statement of another."

Toups told ars technica that when she contacted Texxxan.com to have her images removed, they asked for her credit card.

State legislators are trying to do something about such sites. In Florida, a bill in the 2014 session was introduced to limit access to the mug shots of persons that are arrested for any kind of alleged criminal offense because of the prevalence of privately-owned websites that grab the images from law enforcement sources and demand money from people to remove their mug shots.

Chief Justice Steve McKeithen and Justice Hollis Horton sat also sat on the panel.

Ms. Toups and the other women were represented by John S. Morgan of Beaumont.

GoDaddy was represented by Aaron McKown of the Wrenn Bender firm in Irvine, Calif.

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