Section 230 of the Communications Decency Act (CDA) provides federal immunity to website platforms from claims based on third-party content hosted on the website. 47 U.S.C. § 230(c)(1). Specifically, the statute provides that the provider of an “interactive computer service” cannot be treated as the publisher or speaker of information provided by “another information content provider.” As the Northern District of California affirmed in Callahan v., Inc., Section 230 is not limited to the context of a website hosting user-created content: It also protects a commercial website’s own compilation and republication of content collected from a third-party source.

In Callahan, the court granted two motions to dismiss, holding Ancestry was immune from claims based on the republication of third-party content that Ancestry compiled and published on its website and used in its advertisements and marketing emails. See Callahan v. Inc., No. 20-cv-08437, 2021 WL 783524 (N.D. Cal. March 1, 2021) (order granting motion to dismiss complaint); 2021 WL 2433893 (N.D. Cal. June 15, 2021) (order granting motion to dismiss amended complaint). The suit was based on Ancestry’s use of yearbook photos compiled from donated yearbooks in its “yearbook database” and in Ancestry’s advertisements and emails. The plaintiffs — individuals who appeared in some of the yearbook photos — sued Ancestry for misappropriation of their likenesses and similar claims. In both orders, the court held that Ancestry was immune from such claims under Section 230.

In opposition to Ancestry’s first motion to dismiss asserting Section 230 immunity, the plaintiffs argued in part that Section 230 did not apply because Ancestry “created content by extracting the yearbook content and using the content in its own webpages and emails,” adding information to the content, such as estimated birth years and ages, and adding interactive content, such as buttons prompting users to upgrade their subscriptions. The court rejected this argument, finding that “Ancestry did not transform data and instead offered data in a form — a platform with different functionalities — that did not alter the content.” Ancestry did not create or materially contribute to the content, but merely added “functionality” to the content. According to the court, Ancestry engaged only in “a publisher’s traditional editorial functions that do not transform an individual into a content provider within the means of [Section] 230,” and therefore was immune.

The plaintiffs filed an amended complaint, which added allegations regarding Ancestry’s use of the yearbook photos in marketing emails and advertisements that the plaintiffs contended were “entirely of Ancestry’s design and creation.” Ancestry again moved to dismiss based in part on Section 230 immunity, and the court once again held that Ancestry was immune because it did not create or materially contribute to the content by “taking information and photos from the yearbooks and republishing them on its website in an altered format.” In short, “Ancestry obviously did not create the yearbooks. Instead, it necessarily used information provided by another information-content provider and is immune under [Section] 230(c)(1).” Regarding Ancestry’s use of the yearbook content in its popup ads and emails to promote subscriptions, the court held that Section 230 immunity applied because “Ancestry did not transform the content and just offered it in a different form.”

The Callahan case is notable for its application of the broad protection of Section 230 of the CDA in the context of an internet platform facing claims based on the platform’s own compilation and republication of third-party content. The court’s holding affirms such activity is protected under the CDA to the same extent as hosting user-created content. The plaintiffs have appealed the case to the U.S. Court of Appeals for the Ninth Circuit; Troutman Pepper will continue to monitor and report developments as the appeal progresses.