Word of God Fellowship, Inc. v. Vimeo, Inc.
2022 NY Slip Op 01978
| N.Y. App. Div. | 2022Background
- Daystar Television Network (Daystar) purchased a two-year enterprise OTT hosting subscription from Vimeo/VHX in October 2019, allowing large-scale uploading and hosting.
- Vimeo's Enterprise Terms (incorporating online OTT terms) and publicly announced Acceptable Use Policy (pre-dating the purchase) allowed Vimeo to remove content that, inter alia, "makes false or misleading claims about vaccination safety."
- Daystar uploaded thousands of videos, including six alleging vaccines cause childhood autism; Vimeo notified Daystar that such videos violated its policy and removed five of them in July 2020.
- Daystar sued in New York County alleging breach of contract and unjust enrichment; Supreme Court granted defendants' CPLR 3211 motion to dismiss invoking 47 U.S.C. § 230(c)(2).
- The Appellate Division affirmed, holding § 230(c)(2) shields Vimeo for good-faith removal of content it deems "otherwise objectionable," and Daystar failed to plead bad faith or avoid the contractual bar to unjust enrichment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 230(c)(2) bars Daystar's breach of contract claim | § 230(c)(2) does not apply to contract claims; contract governs removal rights | § 230(c)(2) immunizes voluntary, good-faith content-restriction decisions, including under contracts authorizing removal | § 230(c)(2) applies and precludes the suit; contract did authorize removal so claim barred |
| Whether the removed videos qualify as "otherwise objectionable" under § 230(c)(2) | Videos are not false or misleading, so not "objectionable" | "Otherwise objectionable" is broad and can include vaccine misinformation subjectively deemed objectionable by provider | Held that vaccine misinformation may be "otherwise objectionable"; provider's subjective determination controls |
| Whether Daystar plausibly pleaded bad faith to avoid § 230 immunity | Removal without medical expert review, solicitation of Daystar as customer, and knowledge of vaccine content show bad faith | Allegations are insufficient: no allegation policy was waived, pretext, or anticompetitive motive; bare conclusions fail | Held Daystar failed to plead facts supporting bad faith; immunity stands |
| Viability of unjust enrichment given an express contract | Unjust enrichment available as alternative remedy | Contract governs the dispute; express contract bars quasi‑contract claim | Held unjust enrichment dismissed because the contract governs |
Key Cases Cited
- Shiamili v. Real Estate Group of N.Y., Inc., 17 N.Y.3d 281 (N.Y. 2011) (courts interpret § 230 immunity broadly)
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (publisher/editorial functions immunity under § 230)
- Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040 (9th Cir. 2019) ("otherwise objectionable" construed broadly; ejusdem generis not applied)
- Nemet Chevrolet, Ltd. v. ConsumerAffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) (resolve § 230 immunity early to avoid costly litigation)
- e360 Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605 (N.D. Ill. 2008) (good-faith mistake in blocking does not defeat § 230 immunity)
- Ricci v. Teamsters Union Local 456, 781 F.3d 25 (2d Cir. 2015) (dismissal appropriate where complaint shows § 230 immunity applies)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (discussing scope and limits of § 230 immunity)
- Domen v. Vimeo, Inc., 433 F. Supp. 3d 592 (S.D.N.Y. 2020) (court recognized provider's subjective determination of objectionable content and applied § 230(c)(2))