People v. Gourlay

People v. Gourlay, 2009 WL 529216 (Mich. App. Ct. March 3, 2009)

When he was thirteen years old, Justin Berry started using a web camera to broadcast pornographic images of himself over the internet. Gourlay, who owned a web hosting company, contacted Berry, informed him that he was watching him over the internet, and discussed helping Berry with his site. Gourlay subsequently helped Berry create the “JFWY” and “mexicofriends” websites by hosting the sites, registering the domain names, creating members-only sections, and programming the sites. The sites were programmed to enable Berry to offer live streaming images; Berry used the sites programmed by Gourlay to broadcast pornographic material of himself.

Gourlay denied knowing that Berry was broadcasting pornographic images of himself and claimed that when he learned of the content, he believed Berry was eighteen years old.

Procedural Posture
Gourlay was convicted of a number of counts involving child sexually abusive activity, under MCL 750.145c(2), and distributing or promoting child sexually abusive material, under MCL 750.145c(3). Gourlay appealed his convictions and sentences.

Did the trial court err in failing to instruct the jury on 47 U.S.C. § 230’s safe harbors for non-IP harms?

No. § 230 could not have been used to prevent Gourlay’s convictions.

Under 47 U.S.C. § 230, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Berry was an information content provider, and Gourlay, acting through his web hosting company, was an interactive service provider.

The interactive service provider does not become an “information content provider” if the “provider was only responsible for the general features and mechanisms of the service. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124-25 (9th Cir. 2003). Also, mere notice of the content does not make the service provider an information content provider.

§ 230 only provides immunity from civil liability? The People claim that § 230 is not applicable in the present case because it only provides immunity from civil liability. However, § 230(e)(3) provides that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The word “any” – under its common, generally accepted meaning – includes civil and criminal liability. Thus, § 230 does apply to criminal cases.

Gourlay alleges that the trial court failed to instruct the jury on § 230 with respect to his convictions under MCL750.145c(2) and MCL750.145c(3).

MCL750.145c(2) – A conviction under MCL750.145c(2) “requires proof that the defendant actively and intentionally took action directed toward a child to engage the child in a sexually abusive activity . . . .” Thus, a conviction under this section requires an intentional action; because § 230 could not be construed to cover such intentional actions directed toward a child, an instruction on § 230 could not have been used to prevent a conviction under this section. There was thus no error in failing to instruct the jury on § 230 as it related to MCL750.145c(2).

MCL750.145c(3) – MCL750.145c(3) makes criminal the distribution and promotion of child sexually abusive material. The activities covered in this section are not strict liability crimes and require proof of criminal intent to distribute or promote child sexually abusive material. “This criminal intent includes the intent that others will discover or view the child sexually abusive material.”

While there could be prosecutions under this section in which § 230 could be used to avoid a conviction (e.g. – a prosecution theory where a service provider distributes such material with the requisite intent by continuing to make the material available after receiving notice of it), the prosecutor here did not rely on such a theory in which § 230 was applicable. The prosecution’s theory here was that Gourlay was an active participant in the creation of Berry’s sites, and its evidence of Gourlay’s hosting, programming, and creation of a members-only section go to this theory. Because the prosecution used this “active participant” theory, “an instruction that defendant could not be convicted of MCL750.145c(3) for providing bandwidth or for publishing material that Berry created using the general services and mechanisms provided by Gourlay was not necessary in order to avoid a conviction that was inconsistent with § 230.”

Collateral issues
In addition to dealing with the lack of § 230 jury instruction, the court here tackled a variety of collateral issues involving the defendant’s motion for a new trial, the defendant’s right of confrontation, and whether Berry was an accomplice to Gourlay, among others.

Information on the web
See Eric Goldman, Web Host Convicted of State Child Porn Crimes Despite 230--People v. Gourlay, available at http://blog.ericgoldman.org/archives/2009/03/web_host_convic.htm. As Goldman noted, “this is a complicated case overlaying a tragic situation.”

Josh Nightingale
April 3, 2010

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