Ninth Circuit Determines It Lacks Jurisdiction To Review ' 230 Immunity Issue In Virtual-Yearbook Controversy

• Published date: 14 August 2023
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Copyright, Trademark, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Cullen and Dykman
• Author: Karen I. Levin, Ariel E. Ronneburger and Ciara Villalona-Lockhart

On August 3, 2023, the Ninth Circuit held that it lacked jurisdiction to review the U.S. District Court for the Western District of Washington's denial of immunity under '230 of the Communications Decency Act ("CDA ' 230")¹ in John Boshears v. PeopleConnect, Inc..²

Plaintiff-Appellee John Boshears sued Defendant-Appellant PeopleConnect, Inc., alleging that the Washington-based corporation violated his right of publicity³ by using his photo onClassmates.com, a social media networking website where members can plan in-person or virtual reunion events and view virtual yearbooks from high schools, junior high schools, and elementary schools.⁴ Mr. Boshears is a citizen of Indiana, where he resides and attended high school from 1995-1998.⁵ Mr. Boshears learned that Classmates.com used photos of him from his high school yearbook to advertise subscription services and reprints of yearbooks.⁶ Mr. Boshears never used Classmates.com, nor consented to use of his persona.⁷ PeopleConnect argued, amongst other defenses, that it is immune from suit under CDA ' 230, and therefore, Mr. Boshears' complaint should be dismissed under Fed. R. Civ. P. 12(b)(6).⁸ PeopleConnect also sought to compel Mr. Boshears to arbitrate his claims under '4 of the Federal Arbitration Act.⁹ The District Court rejected PeopleConnect's request to compel arbitration and denied immunity under CDA ' 230.¹⁰

CDA ' 230(c)(1) states, "No provider or user of aninteractive computer serviceshall be treated as the publisher or speaker of any information provided by anotherinformation content provider."¹¹ To be entitled to immunity under ' 230 CDA, PeopleConnect was required to show that it is an "interactive computer service"¹² that merely publishes content provided by a third party "information content provider," defined in the statute as "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."¹³ The statute defines a "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 theInternetand such systems operated or services offered by libraries or educational institutions."¹⁴

The District Court held that PeopleConnect was not entitled to protection under CDA ' 230 because PeopleConnect decided "to...