Robust protection under the CDA

Venkat also commented on the Holomaxx v. MS/Y! ruling.

As with blocking or filtering decisions targeted at malware or spyware, complaining that the ISP was improperly filtering bulk email (spam) is likely to fall on unsympathetic ears. It would take a lot for a court to allow a bulk emailer to conduct discovery on the filtering processes and metrics employed by an ISP. (Hence the rulings on a 12b motion, rather than on summary judgment.) Here the court reiterates the “good faith” standard for 230(c)(2) is measured subjectively, not objectively. That puts a heavy burden on plaintiffs to show subjective bad faith.

Multiple courts have now confirmed that activity taken to block internet traffic is solidly within the protections of the Communications Decency Act. While most courts agree that there is a possibility some ISP, somewhere, will block in bad faith, the burden of proof for that is on the plaintiff. And it seems that the burden of proof is going to be quite high.