540 F.Supp.3d 539
E.D. Va.2021Background
- Plaintiffs Tyrone Henderson, George Harrison, Jr., and Robert McBride sued The Source for Public Data and related entities, alleging inaccurate criminal information in background reports caused employment/housing denials and that defendants failed to provide reports on request.
- Defendants operate publicdata.com, purchasing and aggregating public-record data from courts, vendors, and agencies, then assembling and editing that information into searchable reports.
- Plaintiffs brought a putative class action under the Fair Credit Reporting Act (FCRA) — §§ 1681g, 1681k(a), 1681b(b)(1) — and McBride asserted an individual § 1681e(b) claim.
- Defendants moved for judgment on the pleadings, arguing they are immune under 47 U.S.C. § 230 because the challenged content originated with third-party public records and defendants merely provided access/organized the data.
- The court found documents attached to the motion were not incorporated by reference into the complaint and thus were not considered.
- The court held § 230 can apply to FCRA claims, found the three § 230 elements satisfied (interactive computer service; content from third parties; defendants not an information content provider), and granted the motion, dismissing the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 230 immunity can apply to FCRA claims | § 230 should not bar FCRA remedies; treating the statutes as mutually exclusive | § 230 broadly shields interactive computer services for third-party content and FCRA is not among § 230's enumerated exceptions | § 230 can apply to FCRA claims; Congress listed limited exceptions and FCRA is not one of them |
| Whether the documents attached to defendants' motion are incorporated into the complaint | Attached records are authentic and integral | Records are referenced and thus should be considered | Documents were not incorporated by reference and were not considered |
| Whether defendants are an "interactive computer service" under § 230 | Plaintiffs did not dispute the website nature but argued defendants acted as publishers | Defendants operate an access platform that provides online access to aggregated public records | Court found defendants qualify as an interactive computer service |
| Whether defendants are an "information content provider" (i.e., created/developed the content) | Plaintiffs allege defendants rewrite, summarize, manipulate, and thereby create content | Defendants obtain records from courts/vendors and their editing/organizing fits the access-software/provider role (filtering, selecting) — not material contribution | Court held defendants are not information content providers; their edits amounted to filtering/organizing, not creation |
Key Cases Cited
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (establishes § 230 immunity for interactive computer services for third-party content)
- Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) (§ 230 shields services that do not contribute to content)
- Erie Ins. Co. v. Amazon.com, Inc., 925 F.3d 135 (4th Cir. 2019) (§ 230 does not protect non-speech-based liability such as seller liability for defective products)
- TRW Inc. v. Andrews, 534 U.S. 19 (2001) (canon that expressly enumerated exceptions exclude others)
- Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13 (2020) (noting courts have construed § 230 broadly)
- Directory Assistants v. Supermedia, LLC, 884 F. Supp. 2d 446 (E.D. Va. 2012) (applying § 230 immunity where site did not generate original content)
- Baldino's Lock & Key Serv., Inc. v. Google, Inc., 88 F. Supp. 3d 545 (E.D. Va. 2015) (interactive service immune even when notified of false information)