Section 230 of the Communications Decency Act

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Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others:

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.

In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:

  1. The defendant must be a "provider or user" of an "interactive computer service."
  2. The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
  3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

Contents

[edit] History

Section 230 of the Communications Decency Act was not part of the original Senate legislation, but was added in conference with the House, where it had been separately introduced by Representatives Chris Cox (R-CA) and Ron Wyden (D-OR) as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. Unlike the more controversial anti-indecency provisions which were later ruled unconstitutional, this portion of the Act remains in force, and enhances free speech by making it unnecessary for ISPs and other service providers to unduly restrict customers' actions for fear of being found legally liable for customers' conduct. The act was passed in part in reaction to the 1995 decision in Stratton Oakmont, Inc. v. Prodigy Services Co., which suggested that service providers who assumed an editorial role with regard to customer content, thus became publishers, and legally responsible for libel and other torts committed by customers.

[edit] Controversy

Section 230 is controversial because several courts have interpreted it as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. See, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998), which held that Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”

This rule effectively protects online forums but has been criticized for leaving victims with no hope of relief where the true tortfeasors cannot be identified or are judgment-proof. In Michelangelo Delfino v. Agilent Technologies, (2006) 145 Cal. App. 4th 790, a California Appellate Court unanimously concluded that all employers were ISPs and held that an employer was immune from state tort claims arising from the wrongful actions of an employee.

[edit] Limits

Section 230's coverage is not complete: it excepts federal criminal liability and intellectual property law. 47 U.S.C. §§ 230(e)(1) (criminal) and (e)(2) (intellectual property); see also Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001) (no immunity for contributory liability for trademark infringement); Perfect 10, Inc. v CCBill LLC (No. CV 02-7624 LGB) (C.D. Cal. June 22, 2004) (state right of publicity claim is not covered by Section 230); cf. Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion).

[edit] Application

Courts across the country have upheld Section 230 immunity in a variety of factual contexts and on numerous legal theories, including posting defamatory information, private information, false information, pornographic information, and discriminatory housing ads.

Cases applying Section 230 of the CDA include:

  • Delfino v. Agilent Technologies, 145 Cal. App. 4th 790 (2006)(An employer who provides employees with internet access through employers' internal computer is immune from state tort claims arising from the wrongful actions of an employee using that access);
  • Barrett v. Rosenthal, 40 Cal. 4th 33 (2006) (individual internet user immune from liablity for distribution of defamatory statement); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing email sent to listserv);
  • Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003) (Internet dating service provider was entitled to Section 230 immunity from liability stemming from third party's submission of false profile);
  • Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information); Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for the content of an independent contractor's news reports, despite agreement with the contractor allowing AOL to modify or remove such content);
  • Gentry v. eBay, Inc., 99 Cal.App.4th 816, 830 (2002) (Section 230 “immunizes providers of interactive computer services ... and their users from causes of action asserted by persons alleging harm caused by content provided by a third party.”);
  • Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 692 (2001) (city immune under § 230 from liability for public library's providing computers allowing access to pornography);
  • Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) (§ 230 immunizes AOL for negligence).
  • Zeran v. AOL (1997)

[edit] Section 230 and Wikipedia

In the wake of the Seigenthaler controversy, several commentators explicitly discussed the applicability of Section 230 to Wikipedia. Law professor Anita Ramasastry, in an article on Writ entitled Is an Online Encyclopedia, Such as Wikipedia, Immune From Libel Suits? Under Current Law, the Answer Is Most Likely Yes, But that Law Should Change, suggests that Section 230 should be revisited by Congress; though her suggested change is limited to the case where a content provider is notified of defamatory content, and fails to take action after a reasonable amount of time. (This change would not likely affect Wikipedia's legal liability in the Seigenthaler affair, as Wikipedia administrators removed the offending material immediately upon notification of its existence by Seigenthaler). Other legal scholars have offered similar opinions [1], noting that one of the stated purposes of Section 230 was to enable administrators of interactive Internet sites to be able to edit content posted by others, without fear that by assuming the role of editor; they also become publishers as well (and thus legally liable for any content which is found on their site). Another article (Harvard Journal of Law and Technology, Fall 2006 and a Wikimania 2006 presentation), Wikimmunity: Fitting the Communications Decency Act to Wikipedia, provides a more detailed roadmap to the same conclusion that Section 230, as currently interpreted, shields Wikipedia from defamation liability in the most likely scenarios.

[edit] Section 230 and the Seigenthaler controversy

As part of the fallout of the John Seigenthaler Sr. Wikipedia biography controversy in 2005, many commentators have suggested that the provisions of Section 230 granting widespread immunity to interactive websites, should be altered. Seigenthaler himself made oblique references to the law in both his USA Today article [2], and in his subsequent interview on CNN [3]. In an op-ed published in The Tennessean, Seigenthaler refers to Section 230 directly [4], accusing that Congress "enables and protects... volunteer vandals with poison-pen intellects".

[edit] Section 230 and the Fair Housing Act

In November 2006, the U.S. District Court for the Northern District of Illinois held that Section 230 provided a safe harbor for Internet service providers that "publish" classified ads that violate the Fair Housing Act, which (among other things) prohibits discriminatory advertisements for housing.[1]

Customers of Craigslist had posted advertisements for rental properies with clauses like "NO MINORITIES" and "Requirements: Clean Godly Christian Male", both of which (uncontroversially) violate the provisions of the FHA, and would not be permitted in a print newspaper. While Craigslist has pulled such advertisements (and has a policy requiring customers who post classified ads to adhere to the Fair Housing Act), Craigslist does not prescreen advertisements prior to publication on their site, and as of March 2006, refuses to do so. Instead, Craigslist depends on users to report abusive advertisements, which are then examined and removed if found to be inappropriate.

Craigslist CEO Jim Buckmaster publicly asserted that Craigslist was entitled to a defense based on Section 230, stating that "It is our understanding that the law is very clear to the effect that sites like Craigslist cannot be held legally liable for the content of postings submitted by end users." A lawyer for the housing group, Stephen Libowsky, disagreed with that assessment, stating that the goals of the lawsuit are to ensure that "...Internet places like Craigslist treated no differently than newspapers and other media who have traditionally been posting real estate advertisements. All of the gains are going to get lost if the same rules don't apply." The plaintiffs have stated they will appeal to the Seventh Circuit.

[edit] Cautionary Note: other jurisdictions may lack parallel legislation

Users of internet forums and sites like Craigslist who publish material that may provide grounds for action in non-US jurisdictions should exercise caution in the absence of protection similar to section 230.

For example, in the United Kingdom, Australia and New Zealand, the laws of libel and defamation will treat a disseminator of information as having "published" material posted by a user and the onus will then be on a defendant to prove that it did not know the publication was defamatory and was not negligent in failing to know: Goldsmith v Sperrings Ltd [1977] 2 All ER 566; Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170; Emmens v Pottle & Ors [1885] 16 QBD 354; Gorton v Australian Broadcasting Commission & Anor (1973) 1 ACTR 6; Defamation Act 2005 (NSW), s 32. Failing to investigate the material or to make inquiries of the user concerned may amount to negligence in this context: Jensen v Clark [1982] 2 NZLR 268.

American users should also remember that invocation of United States Constitutional protection of free speech is NOT a defense to a libel or defamation action brought in other jurisdictions.

Following the decision in Dow Jones & Company Inc v Gutnick (2003) Aust Torts Reports ¶81-682, Australian courts, at least, will treat defamatory material on a server outside Australia as having been published in Australia if it is downloaded or read by someone in Australia. Under private international law, a plaintiff successful in obtaining a judgment against, for example, an American defendant in an Australian court may then enforce that judgment against a person domiciled in the United States through the US legal system.

[edit] References

  1. ^ Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., No. 1:06-CV-00657 (N.D. Ill. Nov. 14, 2006); PDF available at http://www.eff.org/legal/cases/clc_v_craigslist/craigslist_decision.pdf .

[edit] External links

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