Section 230 of the Communications Decency Act

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, codified at 47 U.S.C. § 230. 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.

History

Section 230 of the Communications Decency Act was not part of the original Senate legislation, but was added in conference with the House of Representatives, where it had been separately introduced by Representatives Christopher 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.[1] Unlike the more controversial anti-indecency provisions which were later ruled unconstitutional,[2] this portion of the Act remains in force and allows ISPs and other service providers to restrict customers' actions without fear of being found legally liable for the actions that are allowed. The act was passed in part in reaction to the 1995 decision in Stratton Oakmont, Inc. v. Prodigy Services Co.,[3] 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. This act was passed to specifically enhance service providers' ability to delete or otherwise monitor content without themselves becoming publishers. In Zeran v. America Online, Inc., the Court notes that "Congress enacted § 230 to remove the disincentives to self-regulation created by the Stratton Oakmont decision.[4] Under that court's holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230's broad immunity "to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." In addition, Zeran notes "the amount of information communicated via interactive computer services is . . . staggering. The specter of tort liability in an area of such prolific speech would have an obviously chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."

Limits

Section 230 immunity is not unlimited. The statute specifically excepts: 1.) federal criminal liability and 2.) intellectual property claims.[5] However, state criminal laws have been held preempted in cases such as Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1262 (W.D. Wash. 2012)[6] and Voicenet Commc'ns, Inc. v. Corbett, 2006 WL 2506318, at *4 (E.D.Pa. Aug. 30, 2006) (agreeing "[T]he plain language of the CDA provides ... immunity from inconsistent state criminal laws.").[7]

As of mid-2016, courts have issued conflicting decisions regarding the scope of the intellectual property exclusion set forth in 47 U.S.C. § 230(e)(2). For example, in Perfect 10, Inc. v. CCBill LLC,[8] the 9th Circuit Court of Appeals ruled that the exception for intellectual property law applies only to federal intellectual property claims such as copyright infringement, trademark infringement, and patents, reversing a district court ruling that the exception applies to state-law right of publicity claims.[9] The 9th Circuit's decision in Perfect 10 conflicts with conclusions from other courts including Doe v. Friendfinder. The Friendfinder court specifically discussed and rejected the lower court's reading of "intellectual property law" in CCBill and held that the immunity does not reach state right of publicity claims.[10]

Controversy

Section 230 is controversial with certain people 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 entities, including user-generated content websites, that qualify as a "provider or user" of an "interactive computer service."

Case law

Defamatory information

Immunity was upheld against claims that AOL unreasonably delayed in removing defamatory messages posted by third party, failed to post retractions, and failed to screen for similar postings.

The court upheld AOL's immunity from liability for defamation. AOL's agreement with the contractor allowing AOL to modify or remove such content did not make AOL the "information content provider" because the content was created by an independent contractor. The Court noted that Congress made a policy choice by "providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others."

The court upheld immunity for an Internet dating service provider from liability stemming from third party's submission of a false profile. The plaintiff, Carafano, claimed the false profile defamed her, but because the content was created by a third party, the website was immune, even though it had provided multiple choice selections to aid profile creation.

Immunity was upheld for a website operator for distributing an email to a listserv where the plaintiff claimed the email was defamatory. Though there was a question as to whether the information provider intended to send the email to the listserv, the Court decided that for determining the liability of the service provider, "the focus should be not on the information provider's intentions or knowledge when transmitting content but, instead, on the service provider's or user's reasonable perception of those intentions or knowledge." The Court found immunity proper "under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other 'interactive computer service'."

The court upheld immunity for AOL against allegations of negligence. Green claimed AOL failed to adequately police its services and allowed third parties to defame him and inflict intentional emotional distress. The court rejected these arguments because holding AOL negligent in promulgating harmful content would be equivalent to holding AOL "liable for decisions relating to the monitoring, screening, and deletion of content from its network -- actions quintessentially related to a publisher's role."

Immunity was upheld for an individual internet user from liability for republication of defamatory statement on a listserv. The court found the defendant to be a "user of interactive computer services" and thus immune from liability for posting information passed to her by the author.

The court rejected the defendant's motion to dismiss on the grounds of Section 230 immunity, ruling that the plaintiff's allegations that the defendants wrote disparaging report titles and headings, and themselves wrote disparaging editorial messages about the plaintiff, rendered them information content providers. The Web site, www.badbusinessbureau.com, allows users to upload "reports" containing complaints about businesses they have dealt with.

The court rejected immunity and found the defendant was an "information content provider" under Section 230 using much of the same reasoning as the MCW case.

False information

eBay's immunity was upheld for claims based on forged autograph sports items purchased on the auction site.

Immunity for AOL was upheld against liability for a user's posting of incorrect stock information.

Immunity upheld against claims of fraud and money laundering. Google was not responsible for misleading advertising created by third parties who bought space on Google's pages. The court found the creative pleading of money laundering did not cause the case to fall into the crime exception to Section 230 immunity.

Immunity for Orbitz and CheapTickets was upheld for claims based on fraudulent ticket listings entered by third parties on ticket resale marketplaces.

Sexually explicit content and minors

The court upheld immunity against state claims of negligence based on "chat room marketing" of obscene photographs of minor by a third party.

The California Court of Appeal upheld the immunity of a city from claims of waste of public funds, nuisance, premises liability, and denial of substantive due process. The plaintiff's child downloaded pornography from a public library's computers which did not restrict access to minors. The court found the library was not responsible for the content of the internet and explicitly found that section 230(c)(1) immunity covers governmental entities and taxpayer causes of action.

The court upheld immunity for a social networking site from negligence and gross negligence liability for failing to institute safety measures to protect minors and failure to institute policies relating to age verification. The Does' daughter had lied about her age and communicated over MySpace with a man who later sexually assaulted her. In the court's view, the Does' allegations, were "merely another way of claiming that MySpace was liable for publishing the communications."

The court upheld immunity for Craigslist against a county sheriff’s claims that its “erotic services” section constituted a public nuisance because it caused or induced prostitution.

The court upheld immunity for Backpage in contesting a state of Washington law (SB6251)[30] that would have made providers of third-party content online liable for any crimes related to a minor in Washington State.[31] The states of Tennessee and New Jersey later passed similar legislation. Backpage argued that the laws violated Section 230, the Commerce Clause of the United States Constitution, and the First and Fifth Amendments.[30] In all three cases the courts granted Backpage permanent injunctive relief and awarded them attorney’s fees.[28][32][33][34][35]

The court ruled in favor of Backpage after Sheriff Tom Dart of Cook County IL, a frequent critic of Backpage and its adult postings section, sent a letter on his official stationary to Visa and MasterCard demanding that these firms "immediately cease and desist..." allowing the use of their credit cards to purchase ads on Backpage. Within two days both companies withdrew their services from Backpage.[37] Backpage filed a lawsuit asking for a temporary restraining order and preliminary injunction against Dart granting Backpage relief and return to the status quo prior to Dart sending the letter. Backpage alleged that Dart’s actions were unconstitutional violating the First and Fourteenth amendments to the US Constitution as well as Section 230 of the CDA. Backpage asked for Dart to retract his "cease and desist" letters.[38] After initially being denied the injunctive relief by a lower court,[39][40] the Seventh Circuit U.S. Court of Appeals reversed that decision and directed that a permanent injunction be issued enjoining Dart and his office from taking any actions "…to coerce or threaten credit card companies…with sanctions intended to ban credit card or other financial services from being provided to Backpage.com."[41] The court cited section 230 as part of its decision.

Discriminatory housing ads

The court upheld immunity for Craigslist against Fair Housing Act claims based on discriminatory statements in postings on the classifieds website by third party users.

The Ninth Circuit Court of Appeals rejected immunity for the Roommates.com roommate matching service for claims brought under the federal Fair Housing Act[44] and California housing discrimination laws.[45] The court concluded that the manner in which the service elicited information from users concerning their roommate preferences (by having dropdowns specifying gender, presence of children, and sexual orientation), and the manner in which it utilized that information in generating roommate matches (by eliminating profiles that did not match user specifications), the matching service created or developed the information claimed to violate the FHA, and thus was responsible for it as an "information content provider." The court upheld immunity for the descriptions posted by users in the “Additional Comments” section because these were entirely created by users.

Threats

A California Appellate Court unanimously upheld immunity from state tort claims arising from an employee's use of the employer's e-mail system to send threatening messages. The court concluded that an employer that provides Internet access to its employees qualifies as a "provider . . . of an interactive service."

Failure to warn

The Ninth Circuit Court of Appeals rejected immunity for claims of negligence under California law. Doe filed a complaint against Internet Brands which alleged a "failure to warn" her of a known rape scheme, despite her relationship to them as a ModelMayhem.com member. They also had requisite knowledge to avoid future victimization of ModelMayhem.com users by warning users of online sexual predators. The Ninth Circuit Court of Appeals concluded that the Communications Decency Act did not bar the claim and remanded the case to the district court for further proceedings.

In February 2015, the Ninth Circuit panel set aside its 2014 opinion and set the case for reargument. In May 2016, the panel again held that Doe's case could proceed.[46][47]

Similar legislation in other countries

European Union

Directive 2000/31/EC[48] establishes a safe haven regime for hosting providers:

Australia

In Dow Jones & Company Inc v Gutnick,[49] the High Court of Australia treated defamatory material on a server outside Australia as having been published in Australia when it is downloaded or read by someone in Australia.

Gorton v Australian Broadcasting Commission & Anor (1973) 1 ACTR 6

Under the Defamation Act 2005 (NSW),[50] s 32, a defence to defamation is that the defendant neither knew, nor ought reasonably to have known of the defamation, and the lack of knowledge was not due to the defendant's negligence.

New Zealand

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.

France

Directive 2000/31/CE was transposed into the LCEN law. Article 6 of the law establishes safe haven for hosting provider as long as they follow certain rules.

In LICRA vs. Yahoo!, the High Court ordered Yahoo! to take affirmative steps to filter out Nazi memorabilia from its auction site. Yahoo!, Inc. and its then president Timothy Koogle were also criminally charged, but acquitted.

Germany

In 1997, Felix Somm, the former managing director for CompuServe Germany, was charged with violating German child pornography laws because of the material CompuServe's network was carrying into Germany. He was convicted and sentenced to two years probation on May 28, 1998.[51] He was cleared on appeal on November 17, 1999.[52]

The Oberlandesgericht (OLG) Cologne, an appellate court, found that an online auctioneer does not have an active duty to check for counterfeit goods (Az 6 U 12/01).[53]

In one example, the first-instance district court of Hamburg issued a temporary restraining order requiring message board operator Universal Boards to review all comments before they can be posted to prevent the publication of messages inciting others to download harmful files. The court reasoned that "the publishing house must be held liable for spreading such material in the forum, regardless of whether it was aware of the content."[54]

United Kingdom

Also see: Defamation Act 2013.

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.

In an action against a website operator, on a statement posted on the website, it is a defence to show that it was not the operator who posted the statement on the website. The defence is defeated if it was not possible for the claimant to identify the person who posted the statement, or the claimant gave the operator a notice of complaint and the operator failed to respond in accordance with regulations.

References

  1. ↑ Congressional Record. 140: H 8478. August 4, 1995. Missing or empty |title= (help)
  2. ↑ Reno v. ACLU, 521 844, 885 (United States Supreme Court 1997).
  3. ↑ Stratton Oakmont, Inc. v. Prodigy Services Co., 31063/94, 1995 WL 323710, 1995 N.Y. Misc. LEXIS 712 (N.Y. Sup. Ct. 1995).
  4. ↑ Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)
  5. ↑ 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).
  6. ↑ 881 F.Supp.2d 1262 (W.D. Wash. 2012)
  7. ↑ 2006 WL 2506318
  8. ↑ 481 F.3d 751 (9th Cir. Mar. 29, 2007; amended opinion issued May 31, 2007).
  9. ↑ Cf. Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion). But see Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 2008) (230 does not immunize against state IP claims, including right of publicity claims).
  10. ↑ "Doe v Friendfinder". Harvard.edu. 27 March 2008. Retrieved 16 May 2014. United States District Court, D. New Hampshire. Jane DOE v. FRIENDFINDER NETWORK, INC. and Various, Inc. Civil No. 07-cv-286. Opinion No. 2008 DNH 058.
  11. ↑ Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997).
  12. ↑ Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998).
  13. ↑ Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003).
  14. ↑ Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).
  15. ↑ Green v. AOL, 318 F.3d 465 (3rd Cir. 2003).
  16. ↑ Barrett v. Rosenthal, 40 Cal. 4th 33 (2006).
  17. ↑ MCW, Inc. v. badbusinessbureau.com, L.L.C. 2004 WL 833595, No. Civ.A.3:02-CV-2727-G, (N.D. Tex. April 19, 2004).
  18. ↑ Hy Cite Corp. v. badbusinessbureau.com, 418 F. Supp. 2d 1142 (D. Ariz. 2005).
  19. ↑ Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 830 (2002).
  20. ↑ Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980 (10th Cir. 2000).
  21. ↑ Goddard v. Google, Inc., C 08-2738 JF (PVT), 2008 WL 5245490, 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. Dec. 17, 2008).
  22. ↑ Milgram v. Orbitz Worldwide, LLC, ESX-C-142-09 (N.J. Super. Ct. Aug. 26, 2010).
  23. ↑ Doe v. America Online, 783 So. 2d 1010 (Fl. 2001)
  24. ↑ Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001)
  25. ↑ Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008)
  26. ↑ Dart v. Craigslist, 665 F. Supp. 2d 961 (N.D. Ill. Oct. 20, 2009)
  27. ↑ BACKPAGE.COM LLC, Plaintiff, and THE INTERNET ARCHIVE, Plaintiff Intervenor, vs. ROB MCKENNA, Attorney General of Washington, et al., Defendants, in their official capacities (United States District Court Western District of Washington at Seattle July 30, 2012). Text
  28. 1 2 BACKPAGE.COM, LLC, Plaintiff, v. BACKPAGE.COM, LLC v. ROBERT E. COOPER, JR., et al., Defendants, Case 3:12-cv-00654, Document 88 (The United States District Court for the Middle District of Tennessee, Nashville Division May 22, 2014).
  29. ↑ BACKPAGE.COM, LLC, Plaintiff, V. JOHN JAY HOFFMAN, Acting Attorney General of the State of New Jersey; et al.; Defendants. in their official capacities - THE INTERNET ARCHIVE, Plaintiff, v. JOHN JAY HOFFMAN, Acting Attorney General of the State of New Jersey; et al.; Defendants, in their official capacities (United States District Court for The District of New Jersey June 28, 2013). Text
  30. 1 2 DMLP Staff (2 August 2012). "Backpage.com v. McKenna, et al.". Digital Media Law Project. Retrieved 18 May 2014.
  31. ↑ 62nd Legislature 2012 Regular Session. "Certification of Enrollment: Engrossed Substitute Senate Bill 6251" (PDF). Washington State Legislature. Retrieved 2014-05-18.
  32. ↑ "Judgment in a Civil Case: Backpage.com, LLC and The Internet Archive v. Rob McKenna, Attorney General of the State of Washington, et al." (PDF). United States District Court for the Western District of Washington. 2012-12-10. Case Number C12-954RSM, Document 87. Retrieved 2014-05-18.
  33. ↑ Nissenbaum, Gary (May 29, 2014). "Are Internet Publishers Responsible for Advertisements for Potential Sexual Liaisons with Minors?". www.gdnlaw.com. Nissenbaum Law Group, LLC. Retrieved January 21, 2016.
  34. ↑ BACKPAGE.COM, LLC, Plaintiff, v. JOHN JAY HOFFMAN, Acting Attorney General of the State of New Jersey, et al.; Defendants, in their official capacities. & THE INTERNET ARCHIVE, Plaintiff-Intervenor, v. JOHN JAY HOFFMAN, Acting Attorney General of the State of New Jersey, et al.; Defendants, in their official capacities., CIVIL ACTION NO. 2:13-03952 (CCC-JBC) (The United States District Court for the District of New Jersey May 14, 2014).
  35. ↑ BACKPAGE.COM, LLC, Plaintiff, v. JOHN JAY HOFFMAN, Acting Attorney General of the State of New Jersey, et al.; Defendants, in their official capacities. - THE INTERNET ARCHIVE, Plaintiff-Intervenor, v. JOHN JAY HOFFMAN, Acting Attorney General of the State of New Jersey, et al. (The United States District Court for the District of New Jersey May 13, 2014). Text
  36. ↑ BACKPAGE.COM, LLC, Plaintiff-Appellant, v. THOMAS J. DART, Sheriff of Cook County, Illinois, Defendant-Appellee (United States Court of Appeals For the Seventh Circuit November 30, 2015). Text
  37. ↑ Stempel, Jonathan (November 30, 2015). "Backpage.com wins injunction vs Chicago sheriff over adult ads". www.reuters.com. Reuters. Retrieved January 21, 2016.
  38. ↑ Sneed, Tierney (July 21, 2015). "Backpage Sues Chicago Sheriff Over Pressure Campaign to Stop Sex Ads". talkingpointsmemo.com. Talking Points Memo. Retrieved January 21, 2016.
  39. ↑ BACKPAGE.COM, LLC, Plaintiff, No. 15 C 06340 v. SHERIFF THOMAS J. DART, Defendant (The United States District Court Northern District of Illinois, Eastern Division July 24, 2015). Text
  40. ↑ "BACKPAGE.COM, LLC v. DART". www.leagle.com. Leagle. August 24, 2015. Retrieved February 19, 2016.
  41. ↑ BACKPAGE.COM, LLC, Plaintiff-Appellant, v. THOMAS J. DART, Sheriff of Cook County, Illinois Defendant-Appellee (United States Court of Appeals For the Seventh Circuit November 30, 2015). Text
  42. ↑ Chicago Lawyers' Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008).
  43. ↑ Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc).
  44. ↑ 42 U.S.C. § 3604(c).
  45. ↑ Cal. Gov. Code § 12955.
  46. ↑ Proctor, Katherine (May 31, 2016). "Raped Model's Suit Against Website Revived". Courthouse News Service. Retrieved June 1, 2016.
  47. ↑ Jane Doe No. 14 v. Internet Brands, Inc., no. 12-56638 (9th Cir. May 31, 2016).
  48. ↑ "EUR-Lex - 32000L0031 - EN". europa.eu.
  49. ↑ "Dow Jones & Company Inc. v Gutnick [2002] HCA 56 (10 December 2002)". kentlaw.edu.
  50. ↑ "DEFAMATION ACT 2005". austlii.edu.au.
  51. ↑ http://www.gseis.ucla.edu/iclp/fsomm.html http://www.kuner.com/data/reg/somm.html
  52. ↑ http://www.digital-law.net/somm/commentary.html http://news.bbc.co.uk/1/hi/world/europe/524951.stm
  53. ↑ Noogie C. Kaufmann (12 March 2004). "BGH: Online-Auktionshäuser müssen Angebote von Plagiaten sperren". heise online.
  54. ↑ "heise online - IT-News, Nachrichten und Hintergründe". heise online.
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