Categoria: Esimente del safe harbour ex artt. 14-16 d. lgs. 70-2003 + § 230 CDA + § 512 DMCA

Secondo una legge californiana del 1986 (c.d. <<Proposition 65>>), “No person in thecourse of doing business shall knowingly and intentionally expose any
individual to a chemical known to the state to cause cancer or reproductive
toxicity without first giving clear and reasonable warning to such individual,
except as provided in Section 25249.10.”.

Il punto è : Amazon rientra nel concetto di <person in the couirse of doing business> gravato dal voere informativo cit.? Si, secondo la corte di appello della California, 1st app. district, Lee c. Amazon, A158275 in un caso concernente crema richiarante la pelle  mna contenente mercurio in eccesso.

Amazon siostiene naturalmente di non car parte della catena distrivbutiva, ma la difesa è respinta: <<The trial court was clearly correct to reject Amazon’s claim to beoutside the chain of distribution. Proposition 65 imposes the duty to provide
 warnings on any “person in the course of doing business,” which
unquestionably includes Amazon’s activities here. As the trial court
explained, “there is no language in section 25249.l l(f) [‘definitions’ for
Proposition 65] or the new regulations expressly limiting the duty to provide
a Proposition 65 warning only to a ‘manufacturer, producer, packager,
importer, supplier, or distributor of a product,’ or a ‘retail seller’ (under more
limited circumstances described in C.C.R. § 25600.2(e)), or limiting the broad language in the operative statute imposing the warning requirement on any
‘person in the course of doing business’ who ‘knowingly and intentionally
expose[s] any individual’ to a listed chemical. (Health & Saf. Code § 25249.6.)
The phrase ‘person in the course of doing business’ is broadly worded and not
limited to parties in the chain of distribution of a product or whose status is
defined in the regulations. (See Health & Saf. Code, § 25249.11(b).)” Amazon
manages and oversees all aspects of third-party sales on its Web site,
including accepting payment and providing refunds to customers on sellers’
behalf, providing the only channel for communication between customers and
sellers, earning fees from sellers for each completed sale and, for sellers
utilizing the FBA program, storing the products and arranging for their
delivery to customers. There can be no question Amazon was, in the words of
one court, “pivotal in bringing the product here to the consumer.” (Bolger v.
Amazon.com (2020) 53 Cal.App.5th 431, 438 (Bolger).>>, pp. 36-37.

Inolktre Amazon noin ha titolo per invoare l’esimente del § 230 CDA per gli editori (in senso opposto il giudioce di priomo grado).

La questione non è semplice.

L’attore Lee afferma che <<Amazon violated Proposition 65 exposing consumers to mercury without warnings through its own conduct. The claims do not
attempt to hold Amazon responsible for third–party sellers’ content (except in
the sense that Amazon would have been able to disclaim responsibility for
providing warnings if the sellers had provided them). As we have discussed,
the claims do not require Amazon to modify or remove third–party content
but rather to provide a warning where Amazon’s own conduct makes it
subject to Health and Safety Code section 25249.6>>, p. 76

E poi: << Contrary to Amazon’s characterization, enforcing its obligations under
Proposition 65 does not require it to “monitor, review, and revise” product
listings. As both Lee and the Attorney General point out, the “knowingly and
intentionally” requirement in Health and Safety Code section 25249.6 means
Amazon is required to provide a warning where it has knowledge a product
contains a listed chemical—for example, from public health alerts or direct
notice. We recognize that any responsibility to provide warnings Amazon
might have under section 25249.6 would not result in liability if the third-
party seller of a skin-lightening product its If a skin-lightening cream is sold in a brick-and-mortar drug store thatwas aware the product contained mercury, there is no question that retailseller would have some obligation to provide Proposition 65 warnings—depending, of course, on whether entities further up the distribution chainhad provided warnings for the products and, if not, could be held to account.Nothing in the text or purposes of the CDA suggests it should be interpretedto insulate Amazon from responsibilities under Proposition 65 that wouldapply to a brick-and-mortar purveyor of the same product.Not only would such an interpretation give Amazon a competitiveadvantage unintended by Congress in enacting the CDA, but it would beinimical to the purposes of Proposition 65. Amazon makes it possible forsellers who might not be able to place their products in traditional retailstores to reach a vast audience of potential customers. (E.g., Bolger, supra,53 Cal.App.5th at p. 453 [“The Amazon website . . . enables manufacturersand sellers who have little presence in the United States to sell products tocustomers here”].) The evidence in this case indicates that mercury-containing skin-lightening products are overwhelmingly likely to have beenmanufactured outside the United States—unsurprisingly, as FDAregulations prohibit use of mercury as a skin-lightening agent in cosmetics.(21 C.F.R. § 700.13.) This makes it all the more likely Amazon may be theonly business that can readily be compelled to provide a Proposition 65warning for these products. (See 2016 FSOR, supra, p. 55 [discussingimpracticality of enforcing warning requirement against foreign entitywithout agent for service of process in United States]; Bolger, supra,53 Cal.App.5th at p. 453 [noting as first factor supporting application of strictliability doctrine to Amazon that it “may be the only member of thedistribution chain reasonably available to an injured plaintiff who purchasesa product on its website”].) Amazon is thus making available to consumers,and profiting from sales of, products that clearly require Proposition 65warnings, yet are likely to have been manufactured and distributed byentities beyond the reach of reasonable enforcement efforts. InsulatingAmazon from liability for its own Proposition 65 obligations in thesecircumstances would be anomalousto review the product’s packaging and/or listing on the Web site to determine whether a warning was provided by the third-party seller. These facts do not mean Lee’s claims necessarily treats Amazon as a speaker or publisher of information provided by the third-party sellers. If Amazon has actual or constructive knowledge that a product contains mercury, it might choose to review the product listing to determinewhether the third-party seller had provided a Proposition 65 warning before providing the warning itself or removing the listing. But nothing inherently requires Amazon to do so. It could choose, instead, to act on its knowledge by providing the warning regardless, pursuant to its own obligations under Proposition 65>>

Tale legge << “ ‘is a remedial law, designed to protect
the public’ ” which must be construed “ ‘broadly to accomplish that protective
purpose.’ ” (Center for Self-Improvement & Community Development v.
Lennar Corp., supra, 173 Cal.App.4th at pp. 1550–1551, quoting People ex rel.
Lungren v. Superior Court, supra, 14 Cal.4th at p. 314.) Moreover, states’
“police powers to protect the health and safety of their citizens . . . are
‘primarily, and historically, . . . matter[s] of local concern.’ ” (Medtronic, Inc.79
v. Lohr (1996) 518 U.S. 470, 485.) The United States Supreme Court has
explained that “[w]hen addressing questions of express or implied pre-
emption, we begin our analysis ‘with the assumption that the historic police
powers of the States [are] not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress.’ [Citation].” (Altria Group,
Inc. v. Good (2008) 555 U.S. 70, 77.) The “strong presumption against
displacement of state law . . . applies not only to the existence, but also to the
extent, of federal preemption. [Citation.] Because of it, ‘courts should
narrowly interpret the scope of Congress’s “intended invalidation of state
law” whenever possible.’ [Citation].” (Brown v. Mortensen (2011) 51 Cal.4th
1052, 1064.)
As the Ninth Circuit has explained, Congress intended “to preserve the
free-flowing nature of Internet speech and commerce without unduly
prejudicing the enforcement of other important state and federal laws. When
Congress passed section 230 it didn’t intend to prevent the enforcement of all
laws online; rather, it sought to encourage interactive computer services that
provide users neutral tools to post content online to police that content
without fear that through their ‘good samaritan . . . screening of offensive
material,’ [citation], they would become liable for every single message posted
by third parties on their website.” (Roommates.com, supra, 521 F.3d at
p. 1175, quoting § 230(c).)
The text of section 230(e)(3) is clear that state laws inconsistent with
section 230 are preempted while those consistent with section 230 are not
preempted. Proposition 65’s warning requirement is an exercise of state
authority to protect the public that imposes obligations on any individual who
exposes another to a listed chemical. Proposition 65 is not inconsistent with
the CDA because imposing liability on Amazon for failing to comply with its own, independent obligations under Proposition 65, does not require treating Amazon as the publisher or speaker of third-party sellers’ content.

Accordingly, if Lee can establish all the elements of a violation of Proposition
65, section 230 does not immunize Amazon from liability>>, pp. 79-80

(notizia della sentenza e link dal blog del prof. Eric Goldman)