Communications Decency Act Immunity – Agency – Apparent Authority


Ex parte The, Inc., [Ms. 1200871, Aug. 12, 2022] __ So. 3d __ (Ala. 2022). The Court, in what seems to be a plurality opinion, (Bolin, J. concurs specially, which Wise, Sellers, and Mendheim, JJ., join; Shaw and Bryan, JJ., concur in the result; Parker, C.J., and Stewart, J., dissent; Mitchell, J., recuses), grants the, Inc.’s (“HuffPost”) petition for a writ of mandamus predicated on the immunity afforded by the Communications Decency Act of 1996, 47 U.S.C. § 230.

Plaintiff K.G.S., a prospective adoptive mother of Baby Doe, asserted against HuffPost claims of invasion of privacy, negligence per se by violating confidentiality provisions of Alabama’s Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, and the tort of outrage based upon articles written by Mirah Riben, a well-known critic of the United States’ adoption system and contributor to the Huffington Post, a Web site operated by HuffPost. The Communications Decency Act grants “interactive computer services providers” such as Huffpost immunity from state-law claims arising from content created and developed by other parties, such as Riben.

K.G.S. argued that a summary judgment is generally inappropriate on the issue of agency and that substantial evidence was presented as to whether Riben was acting as HuffPost’s agent when she wrote the articles regarding K.G.S.’s prospective adoption of Baby Doe. Ms. **5-6. The opinion first notes that “[i]n light of Congress’s findings and policy concerns, reviewing courts have treated § 230 immunity as ‘quite robust, adopting a relatively expansive definition of interactive computer service and a relatively restrictive definition of ‘information content provider.’ Carafano v., Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)(footnotes omitted). An interactive-computer-service provider qualifies for immunity only with respect to information provided by an information content provider other than itself.” Ms. *12 (some internal quotation marks omitted).

The opinion explains that under § 230, “[t]he determinative issue presented specifically turns on whether HuffPost, which undisputedly provides an ‘interactive computer service,’ can also be considered [based on agency] an ‘information content provider’ of the articles posted to its Web site.” Ms. *17. On the issue of agency, the opinion notes that “Riben and HuffPost expressly agreed that HuffPost did not possess any right or authority to control the manner in which Riben created the content that she submitted to HuffPost.” Ms. *27. Although “‘a contract which, on its face, directly disclaims any agency relationship or which does not by its terms create such a relationship, will not preclude the finding of agency if there is independent evidence of a retained right of control.’ Wood v. Shell Oil Co., 495 So. 2d 1034, 1037 (Ala. 1986),” Ms. *28, the opinion finds from the record “no independent evidence indicating that HuffPost retained a right of control over Riben and the manner in which she created content for the Huffington Post Web site.” Ibid.

The opinion also rejects the circuit court’s conclusion there was substantial evidence of apparent authority:

The doctrine of apparent authority is based upon the actions of the purported principal and not those of the purported agent or what the purported agent holds his or her authority out to be. Malmberg [v. American Honda Motor Co.], 644 So. 2d [888,] 891 [(Ala. 1994)]. What the purported agent believes his or her status to be is also irrelevant, because apparent authority is based upon a third party’s objectively reasonable belief that an individual is an agent of the principal. Brown, 899 So. 2d at 239.

Ms. **33-34.

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