Websites Immune from Liability for Creating Online Drug Marketplace under CDA Section 230

The Short Version:

  1. The parents of a son who fatally overdosed on a drug purchased from a user of a Topix forum sued the website, claiming that Topix constituted a public nuisance because it “knowingly, willfully and intentionally operat[ed] its business in a manner that facilitates extensive trafficking in illegal drugs.”
  2. Citing Section 230 of the Communications Decency Act, which provides that websites aren’t liable for third-party content, a Los Angeles judge dismissed the lawsuit because it sought to hold Topix liable for the communications between third-party users of Topix forums.
  3. Unlike your run-of-the-mill Section 230 case, liability for Topix was not premised on the mere publication of third-party communications, but on Topix’s own conduct of knowingly operating a website that created forums singularly used as a locale for drug transactions to occur.
  4. CDA Section 230 needs to be amended to allow persons such as the Witkoffs to bring claims against a website that hosts illegal or offensive online content if that website is structured to facilitate the posting of that content. This would not endanger the protection CDA Section 230 accords to the vast majority of websites currently operating and would be consistent with how our law treats owners of other property.

Contrary to what some readers have suggested, I do not seek complete overhaul of CDA Section 230. The simplicity of a provision that in so few words makes sure that if a user of a website does something illegal, you blame the user and not the website is nothing short of remarkable. Plus, more often than not, this makes sense: it would be unfair to hold websites like Facebook liable for illegal or otherwise offensive and harmful content posted on their servers because they can neither be deemed responsible for the creation of this content, nor, given the amount of postings its users generate each day, be reasonably held accountable for its prevention.

However, there are times when this logic does not apply, and I have previously stated that a website’s right to claim Section 230 immunity for its user’s illegal actions should be diminished if that website is created or structured to facilitate the very illegal conduct for which they are being sued. Again, this makes sense, too: it is less credible for a website to disclaim responsibility for illegal or offensive content on their servers when they have created forums dedicated to hosting this type of material, which, by centralizing the location of this content, increases its reach and begets its proliferation. Put simply, the CDA should not apply in these situations because it is the knowing operation of a website that encourages and facilitates the spread of this content and not just the publishing or hosting of the content itself that makes the conduct of these website operators far more nefarious.

Yet, despite this, courts still seem to feel like their hands are tied when it comes to lawsuits brought against websites who do structure their websites in this way. Most recently, this occurred in Los Angeles where, as Eric Goldman first reported2, a website that permitted drug sales to openly occur on a forum it created was allowed to use CDA Section 230 to block a Los Angeles Superior Court judge from even considering the merits of a parent’s claim that the website was a public nuisance that endangered their community and contributed to the wrongful death of their son.

This is exactly the type of case that tiptoes the line of what I find acceptable and unacceptable about the blanket protection afforded to websites by Section 230 and a perfect example of why I believe the biggest threat to Section 230’s continued existence is Section 230 itself.

The backstory: Topix is a website entirely driven off of user-generated content. Although they aggregate and republish news stories, Topix’s primary attraction is forums that the website has created and devoted to a multitude of, you guessed it, topics that are either content-specific or region-specific. At the time this case was filed, Topix had a forum entitled “OxyContin, Roxicodone, Oxycodone,” and this forum was used as a space where buyers and sellers of these drugs freely and openly engaged in drug transactions.

On August 12, 2011, Andrew Witkoff, a 22-year old who just graduated from an in-patient drug rehab program to a halfway house, searched Google for “Where to buy Oxycodone Los Angeles” and the number one Google result was the Topix OxyContin forum. Within hours of responding to a seller’s thread, Andrew had obtained the drugs. Two days later, Andrew was dead; he had overdosed.

The lawsuit: Following the two year anniversary of Andrew’s death, his parents, Steven and Lauren Witkoff, filed a lawsuit against Topix in Los Angeles County Superior Court. The lawsuit sought to hold Topix liable as a public nuisance and for the wrongful death of their son because Topix “knowingly, willfully and intentionally operat[ed] its business in a manner that facilitates extensive trafficking in illegal drugs.”

The outcome: On May 14, 2014, a Los Angeles Superior Court judge dismissed the lawsuit. Without even addressing the claims of whether Topix was knowingly operated in a manner that facilitated drug sales, including the sale of Oxycontin that would lead to Andrew’s overdose, the judge held that the Witkoffs “seek to impose liability on [Topix] for conduct by third-party users who utilize [Topix’s] website and forums, and that is not permissible under the immunity provided by Section 230.”

My take: From a distance, this ruling appears to be just like every other Section 230 ruling in the past decade or so. Section 230 was created in order to protect websites against lawsuits that seek to hold them liable as a publisher or speaker of third-party content and here, as the Court explained, the Witkoffs sought to hold Topix liable for third-party communications that occurred on its forums. So, easy case, right?

Not so fast. Although at first glance it appears that the Witkoffs were seeking to hold Topix liable for third-party communications, their lawsuit was actually predicated on public nuisance and wrongful death claims alleging that the manner in which Topix operated its website–i.e., by permitting drug transactions to occur openly on their forums–endangered their community and contributed to the death of their son. In other words, the Witkoffs were not seeking to hold Topix liable for the communications between buyers and sellers of drugs on its forums, but instead for their own conduct of knowingly operating their website in a manner that facilitated these communications.

Given that it is still the third-party communication within these forums that make it a public nuisance, this is admittedly a fine line for distinction; yet, it is a distinction that perfectly accords with the rule and reasons for which I advocate amending Section 230. Here, Topix created this and other like forums that were singularly used by people to openly communicate about the purchase and sale of various narcotics, and regardless of the fact that these were third-party communications, the Witkoffs should be allowed to have the jury try Topix on whether their acquiescence to this happening rose to the point that Topix should share not just in the profits of increased ad views, but also in the responsibility for what comes as a result of this acquiescence. Moreover, finding the owners of websites liable for the unsafe operations of their online property would be consistent with how our law already treats owners of real property, whom may be held liable for harms caused by dangerous conditions on their property even if that harm is caused to an unauthorized user of that land.

I also do not agree that amending Section 230 to enable individuals to seek redress from these websites would unnecessarily endanger the operations of other innocent websites. That is because, in your run-of-the-mill Section 230 case, where, for example, an individual seeks to hold Yelp, Facebook, Twitter, Google, or your favorite news website liable for defamatory or otherwise offensive material users have posted on their website, this distinction simply would not come into play because none of these websites are created or structured to elicit this material in the way that Topix did. To see what I mean, take a look at a screenshot of the forum in which Andrew made what would be his final illegal purchase of Oxycontin (taken by WayBackMachine on the day Andrew died), and ask yourself whether any of the websites you say I am endangering create forums like this and allow them to persist despite widespread knowledge of what is occurring within.


Finally, it is important to note that preventing Section 230 from blocking claims brought against websites that are designed to elicit illegal, offensive, or harmful content does not mean that these websites will be found liable for these claims. Rather, it only means that these claims will be allowed to be tried on their merits such that, for example, a judge or jury can decide for themselves whether or not Topix was a public nuisance and/or did act so negligently in operating their website that they can be found liable for the wrongful death of Steven and Lauren’s son.

Until courts or Congress are ready to allow these claims to proceed, Topix CEO Chris Tolles will remain correct when he says, “The Communications Decency Act is pretty clear about how this stuff works. We are not legally obligated to actually review any complaint coming in or moderate that at all. You can leave up a site and let anyone say anything, and not be responsible.”

  1. A special thanks to Eric Goldman and Santa Clara University for making available the case files linked to in this article. You can find more of Eric Goldman’s extensive coverage of Section 230 cases here.

  2. A special thanks to Eric Goldman and Santa Clara University for making available the case files linked to in this article. You can find more of Eric Goldman’s extensive coverage of Section 230 cases here.

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

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Websites Immune from Liability for Creating Online Drug Marketplace under CDA Section 230 | techlawgic