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Consistent with Congress' intent to confer broad immunity for the re-publication of third-party content, internet services may invoke 47 U.S.C.S. § 230 immunity as grounds for dismissal under Fed. R. Civ. P. 12(b)(6). Preemption under the Communications Decency Act is an affirmative defense, but it can still support a motion to dismiss if the statute's barrier to suit is evident from the face of the complaint. To determine whether dismissal is appropriate, the U.S. Court of Appeals for the D.C. Circuit has adopted a three-pronged test that tracks the text of § 230(c)(1): The Communications Decency Act mandates dismissal if (i) the defendant is a provider or user of an interactive computer service, (ii) the information for which the plaintiff seeks to hold the defendant liable was information provided by another information content provider, and (iii) the complaint seeks to hold the defendant liable as the publisher or speaker of that information.
The plaintiffs were operating businesses that provide legitimate locksmith services. They faced competition from “scam” locksmiths who were misrepresenting their businesses in terms of “services offered, pricing, expertise, training, who was behind the website, their location, contact information, and whether they were licensed or registered to do business.” According to the plaintiffs, the internet allowed scam locksmiths to amplify their influence. The plaintiffs then filed an amended complaint alleging that Google, Microsoft, and Yahoo! have conspired to "flood the market" of online search results with information about so-called "scam" locksmiths, in order to extract additional advertising revenue. According to the amended complaint, the defendants further this scheme by publishing the content of scam locksmiths' websites, translating street-address and area-code information on those websites into map pinpoints, and allegedly publishing the defendants' own original content. The district court dismissed the amended complaint as barred by the Communications Decency Act, which stated that “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." The plaintiffs challenged the decision.
Was the plaintiffs’ complaint barred by the Communications Decency Act, thereby warranting the dismissal of the same?
The Court held that the local locksmith companies' claims against search engine operators, based on the publication of information provided by "scam" locksmiths which made search results appear as if the "scam" companies were local, were properly dismissed under 47 U.S.C.S. § 230(c)(1) of the Communications Decency Act because the posting of third-party content was plainly within the immunity provided by § 230, the decision to present third-party data in a map format did not constitute the "creation" or "development" of information for purposes of § 230(f)(3), and the location of the map pinpoint was derived from scam-locksmith information using a neutral algorithm.