A recent decision by the Ninth Circuit, Enigma Software Grp. USA, LLC v. Malwarebytes, Inc. (9th Cir. 2019), holds that immunity under the Communications Decency Act (CDA) does not extend to claims of anti-competitive conduct by a software manufacturer.
The parties to the case are competitors in the market for software used by parents to protect minors from undesirable online content, such as pornography, violence and “otherwise objectionable conduct.”
Malwarebytes allegedly programmed its software to flag Enigma’s software products as “Potentially Unwanted Programs” or PUPs. Enigma sued for false advertising under the Lanham Act and three state-law theories.
The district court held that these claims were protected by the CDA’s immunity for providers of means to block objectionable conduct, codified at 47 USC § 230(c)(2). But the Ninth Circuit reversed, holding that the immunity did not reach blocking of content done for anti-competitive purposes, as the complaint alleged.
The Enigma Software decision is important in that it shows the limits of the immunities contained in the CDA.
Although the issue in Engima Software concerned distribution of blocking software, a closely related CDA immunity has often been invoked by websites and other hosts of third-party content. That immunity allows websites to remove or retain content without fear of liability. But the new decisions suggest that there are limits to how far the courts will allow these immunities to apply.