The Fourth Circuit heard argument earlier this week on whether Section 230 of the Communications Decency Act shields on-line data aggregator, PublicData.com, from FCRA liability in a putative class action dismissed last year by a federal judge in Virginia. We previously blogged about the amicus brief filed in the appeal by the CFPB, FTC, and North Carolina Department of Justice.
At oral argument, counsel for PublicData.com stressed that reversing the lower court decision would open the door to allowing federal and state governments to impose “a suite of onerous regulations” on internet platforms based on third party content, when such platforms otherwise would be immune from liability for third party content under Section 230.
Counsel for the consumer-plaintiffs argued that Section 230 immunity for online platforms applies only when such platforms limit themselves to “traditional publishing functions,” and that PublicData.com’s alleged active assembly of government information and generation of reports goes beyond that, and should be subject to regulation under the FCRA. Counsel for PublicData.com claimed the plaintiffs were mischaracterizing the nature of PublicData.com’s activities, arguing that the site is simply a conduit of information republished in searchable format.
Attorneys for the state attorneys general and FTC also argued in support of the plaintiff’s position, contending that the plaintiffs’ claims are not targeting PublicData.com as a third-party publisher such that Section 230 would be implicated. Counsel for the FTC also emphasized that the court’s decision would have broad impact on the government’s ability to enforce the FCRA against all on-line platforms.
Comments from the panel were mixed, but seemed to lean in favor of the plaintiffs’ position that PublicData.com’s activities were in fact subject to the FCRA.
We will await the Fourth Circuit’s decision in the appeal, and will report on it here.