Section 230 of the CDA and Website Immunity


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The Communications Decency Act, found in Section 230 of Title 47 of the US Code, was enacted in 1996 to provide website operators with immunity for third-party content. At the time, Section 230 seemed like the best approach to help the internet grow, as several court cases threatened to put many service providers such as AOL and Prodigy out of business. Yet, Section 230 of the CDA has caused many unintentional problems that, at the time, were probably never contemplated.

What does Section 230 of the CDA do?

Since its inception, most Courts have treated any website that hosts third party content as being immune under Section 230 of the CDA since they are mediums through which the information transfers, rather than actually publishing the information. Because the website operator does not actually "publish" the information, they cannot be held liable as a "publisher". For example, let's examine the two main provisions that Courts look at when analyzing a CDA case:

Section 230(c)(1) - 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.

Section 230(c)(2) -No provider or user of an interactive computer service shall be held liable on account of- (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

As you can see, this statute is very broad in scope. At the time, the legislators probably did not conceive that one day people would be hosting mini sites (blogs) or would have sites dedicated to providing user reviews (yelp). You see, the internet was a very different place back in 1996, and every year it seems to be growing in a different direction. Most Courts, however, have failed to realize this as the policies behind Section 230 are still ingrained in the minds of the public....policies which no longer serve the same purpose that they did 15 years ago. As the times change, so do the ways in which ideas and information is exchanged, which was the intent behind the enactment of Section 230. Specifically, the intent was: (1) to promote the free exchange of information and ideas over the internet; and (2) to encourage voluntary monitoring for offensive or obscene material. So where did things go wrong?
What are recent Court cases regarding Section 230 of the CDA?

Today, most Court decisions fall largely in favor of the service providers. Rarely will a website lose immunity unless it is acting as a content provider (ie the writer of the content). Some Courts, however, have held that if the website edits the content in any way or changes the meaning of it, then the website may lose its immunity under Section 230. With that in mind, the question then is what type of immunity does Section 230 provide? Courts have granted broad immunity to ISPs, under Section 230 of the CDA, when it comes to Torts. Specifically, Section 230 of the CDA is a Shield for ISP's and website operators from defamatory comments others leave on the site (does not shield the individual from defamation however).

So in summary, the Communications Decency Act, 47 U.S.C. 230(c) provides absolute tort immunity to users and providers of interactive computer services for third party postings. This was confirmed in the case of Zeran v. America Online, Inc., 129 F.3rd 327 (4th Cir. 1997). In fact, this provision has been construed to extend absolute immunity to bloggers for third party postings: Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal. Rptr.3rd 55, 146 P.3d 510, 514 (Cal. 2006) Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

ABOUT THE AUTHOR: Aaron M. Kelly
Aaron M. Kelly is an attorney based in Scottsdale, AZ who focuses on Internet Law, Business Law, and Bankruptcy. Aaron is an experienced Internet Lawyer and he regularly speaks on topics involving Internet law.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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