53 F.4th 110
4th Cir.2022Background
- Defendants (collectively “Public Data”) operate PublicData.com, acquiring public records, parsing/reformatting them, creating proprietary summaries (allegedly omitting dispositions), and selling searchable consumer reports used for credit and employment checks.
- Plaintiffs requested their files; Public Data failed to produce them. McBride alleges a potential employer relied on Public Data’s inaccurate background report (omitting nolle prosequi dispositions) and did not hire him.
- Plaintiffs sued under four FCRA provisions: §1681g (disclosure to consumer), §1681k (notice/procedures for public-record employment reports), §1681b(b)(1) (employer certifications & rights summary), and §1681e(b) (reasonable-procedures to assure accuracy).
- District court granted judgment on the pleadings for Public Data, holding §230(c)(1) barred the FCRA claims. Plaintiffs appealed.
- Fourth Circuit reversed and remanded: it held §230(c)(1) does not bar Counts One and Three because those claims do not treat Public Data as a publisher, and does not bar Counts Two and Four at this stage because Plaintiffs plausibly alleged Public Data materially contributed to the unlawful inaccuracies (making it an information content provider).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §230(c)(1) bars FCRA claims that depend on publication | §230 does not apply because the FCRA duties at issue do not treat Public Data as a publisher or depend on unlawful content | §230 bars the claims because liability arises from publishing consumer reports online | §230 protects only when claim treats defendant as publisher/speaker and the challenged information was provided by another information content provider; neither requirement is met here on the pleaded facts |
| Count One (§1681g: disclosure to consumer) — treated as publisher? | Henderson: §1681g is a disclosure-to-consumer duty, not publisher liability to third parties | Public Data: publication is a but-for cause of the claim, so §230 should bar it | Held: Not barred — §1681g concerns disclosure to the subject (not third parties) and does not seek to hold defendant liable as publisher of improper content |
| Count Three (§1681b(b)(1): employer certifications & rights summary) — treated as publisher? | McBride: duty concerns procedural certifications/summaries, not liability for published content | Public Data: publishing reports for employment triggers §230 immunity | Held: Not barred — liability hinges on failure to obtain/communicate certifications and to provide a lawful rights summary, not on improper content |
| Counts Two & Four (§1681k & §1681e(b): reasonable-procedures/accuracy) — was information "provided by another information content provider"? | Plaintiffs: Public Data materially altered/omitted dispositions and authored misleading summaries, so it materially contributed to the inaccuracies and is an information content provider | Public Data: records originated with third-party public sources, so §230 bars these claims | Held: Not barred at pleading stage — plaintiffs plausibly allege Public Data materially contributed to the unlawful inaccuracies, making §230 inapplicable |
Key Cases Cited
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (foundational §230(c)(1) publisher-immunity framework; treats publisher role with common-law defamation roots)
- Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) (§230 requires information provided by another; site operator not an information content provider absent contribution to unlawfulness)
- Erie Ins. Co. v. Amazon.com, Inc., 925 F.3d 135 (4th Cir. 2019) (but-for publication causing harm is not sufficient for §230 immunity when claim targets non-speech conduct)
- HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019) (reads §230(c)(1) as having three requirements and informs functional analysis)
- Force v. Facebook, 934 F.3d 53 (2d Cir. 2019) (adopts material-contribution test for information content provider)
- FTC v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir. 2016) (material contribution standard for development/creation of unlawful content)
- Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398 (6th Cir. 2014) (distinguishes contribution to content overall from contribution to its unlawful portion)
- Dalton v. Capital Associated Indus., Inc., 257 F.3d 409 (4th Cir. 2001) (FCRA §1681e(b) liability requires an inaccurate consumer report)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (Article III standing for FCRA claims requires dissemination of inaccurate reports to third parties to establish concrete harm)
- La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020) (no §230 immunity where defendant added defamatory content to a third-party posting)