Safe harbour ex 230 CDA per Armslist, piattaforma per vendita on line di armi? Questione dubbia

Due corti statunitensi negano il safe harbour ex 230 CDA alla piattaforma di vendita di armi Armslist  , non trattandosi di azioni in cui son considerati editori/publisher/speaker .

Si trattava di responsabilità consguente ad uccisioni cagionate tramite armi da fuoco acquistate su Armslist: la quale sarebbe stata negligente nel permettere tale commercio incontrollato, avendo implementato  un software inadeguato alla base del proprio marketplace.

 Si tratta di due tribunali del Wisconsin, east. dis.:

1) BAUER and ESTATE OF PAUL BAUER v. ARMSLIST, del 19.11.2021, caso 20-cv-215-pp, sub V.B: <<The court does not mean to imply that §230(c) never can provide protection from liability for entities like Armslist. But that protection is not, as Armslist has argued, a broad grant of immunity. It is a fact-based inquiry. For example, the Seventh Circuit affirmed the district court’s grant of Craigslist’s motion for judgment on the pleadings in Chi. Lawyers’ Comm. The court recounted that “[a]lmost in passing, ” the plaintiff had alleged that Craiglist was liable for violations of the Fair Housing Act because although it had not created the discriminatory posts, it had “caused” the discriminatory third-party posts to be made. Chi. Lawyers’ Comm., 519 F.3d at 671. Emphasizing that Craigslist was not the author of the discriminatory posts, the Seventh Circuit found that the only causal connection between Craigslist and the discriminatory posts was the fact that “no one could post a discriminatory ad if craiglist did not offer a forum.” Id. The court stated that “[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination; for example, craigslist does not offer a lower price to people who include discriminatory statements in their postings.” Id. at 671-72. For that reason, the court concluded that “given § 230(c)(1) [the plaintiff] cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.” Id. at 672.

The plaintiffs in this case have not raised claims of defamation or obscenity or copyright infringement—the types of claims that would require the court to determine whether Armslist is a “publisher” or “speaker” of content, rather than a provider of an interactive computer service that hosts content created by third parties. None of the nine claims in the second amended complaint challenge the content of ads posted on the Armslist.com website—not even Caldwell’s ad. The plaintiffs have alleged that Armslist should have structured the website differently—should have included safeguards and screening/monitoring provisions, should have been aware of the activity of individuals like Caldwell, should have implemented measures that would prevent illegal firearms dealers from using the website to sell guns without a license.

In declining to dismiss the complaint on §230(c) grounds, the court in Webber v. Armslist recently stated that because the plaintiff in that case had alleged “negligence and public nuisance based on Defendants’ affirmative conduct, ” it appeared that “§ 230 is not even relevant to this case.” Webber v. Armslist, No. 20-cv-1526, 2021 WL 5206580, at *6 (E.D. Wis. Nov. 9, 2021). This court agrees. Section 230 does not immunize Armslist from suit and the court will not dismiss the complaint on that basis.>>

2) Webber v. Armslist, del 9 novembre 2021, caso 20-C-1526, più dettagliata sul punto: <<But even if § 230 applies to this type of case, Plaintiff’s claims do not seek to treat Defendants as the “publisher or speaker” of the post in question. Here, Plaintiff seeks to hold Defendants liable for their “role in developing or co-developing [their] own content.” Dkt. No. 13 at 18. Specifically, Plaintiff faults Defendants for failing to prohibit criminals from accessing or buying firearms through Armslist.com; actively encouraging, assisting, and facilitating illegal firearms transactions through their various design decisions; failing to require greater details from users, such as providing credit-card verified evidence of users’ identities; failing to require that sellers certify under oath that they are legal purchasers; and failing to provide regularly updated information regarding applicable firearms laws to its users, among many other things. Compl. at ¶ 165. In essence, the complaint “focuses primarily on Armslist’s own conduct in creating the high-risk gun market and its dangerous features, ” not on the post in question. Dkt. No. 13 at 23. This type of claim, then, does not seek to treat Defendants as the “publisher or speaker” of the post that led to Schmidt’s killer obtaining a firearm; rather, it seeks to hold Defendants liable for their own misconduct in negligently and recklessly creating a service that facilitates the illegal sale of firearms. 47 U.S.C. § 230(c)(1). For these reasons, the Court concludes that § 230 does not immunize Defendants from liability in this case>>.

Viene però osservato dal prof. Eric Goldman (da cui ho tratto notizia e link alle sentenze),  che  la corte suprema del Wisconsin nel 2019 in Daniel v. Armslist aveva invece concesso il safe harbour