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dmlp.org - Immunity for Online Publishers Under the Communications Decency Act

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This page provides some background on section 230 of the Communications Decency Act ("Section 230") and highlights the types of claims and online activities it covers as well as the types of activities that might fall outside Section 230's immunity provisions. For general information on legal liability associated with publishing the content of others, see the section on Publishing the Statements and Content of Others in this guide.

Background on Publisher and Distributor Liability

Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. Thus, a book publisher or a newspaper publisher can be held liable for anything that appears within its pages. The theory behind this "publisher" liability is that a publisher has the knowledge, opportunity, and ability to exercise editorial control over the content of its publications. Distributor liability is much more limited. Newsstands, bookstores, and libraries are generally not held liable for the content of the material that they distribute. The concern is that it would be impossible for distributors to read every publication before they sell or distribute it, and that as a result, distributors would engage in excessive self-censorship. In addition, it would be very hard for distributors to know whether something is actionable defamation; after all, speech must be false to be defamatory. Not surprisingly, the first websites to be sued for defamation based on the statements of others argued that they were merely distributors, and not publishers, of the content on their sites. One of the first such cases was Cubby v. CompuServe, Inc. 776 F.Supp. 135 (S.D.N.Y. 1991). CompuServe provided subscribers with access to over 150 specialty electronic "forums" that were run by third parties. When CompuServe was sued over allegedly defamatory statements that appeared in the "Rumorville" forum, it argued that it should be treated like a distributor because it did not review the contents of the bulletin board before it appeared on CompuServe’s site. The court agreed and dismissed the case against CompuServe. Four years later, a New York state court came to the opposite conclusion when faced with a website that held itself out as a "family friendly" computer network. In Stratton Oakmont v. Prodigy, 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995), the court held that because Prodigy was exercising editorial control over the messages that appeared on its bulletin boards through its content guidelines and software screening program, Prodigy was more like a "publisher" than a "distributor" and therefore fully liable for all of the content on its site. The perverse upshot of the CompuServe and Stratton decisions was that any effort by an online information provider to restrict or edit user-submitted content on its site faced a much higher risk of liability if it failed to eliminate all defamatory material than if it simply didn’t try to control or edit the content of third parties at all.

The Communications Decency Act

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This prompted Congress to pass the Communications Decency Act in 1996. The Act contains deceptively simple language under the heading "Protection for Good Samaritan blocking and screening of offensive material": 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 further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

Websites Covered by Section 230

Is an "interactive computer service" some special type of website? No. For purposes of Section 230, an "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server. Most courts have held that through these provisions, Congress granted interactive services of all types, including blogs, forums, and listservs, immunity from tort liability so long as the information is provided by a third party. As a result of Section 230, Internet publishers are treated differently from publishers in print, television, and radio. Let's look at these difference in more detail.

Claims Covered by Section 230

Section 230 has most frequently been applied to bar defamation-based claims. In the typical case, a plaintiff who believes she has been defamed sues both the author of the statement and the website that provided a forum or otherwise passively hosted the material. Courts have held with virtual unanimity that such claims against a website are barred by Section 230. But immunity under Section 230 is not limited to defamation or speech-based torts. Courts have applied Section 230 immunity to bar claims such as invasion of privacy, misappropriation, and most recently in a case brought against MySpace (Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007)), a claim asserting that MySpace was negligent for failing to implement age verification procedures and to protect a fourteen-year old from sexual predators. However, Section 230 explicitly exempts from its coverage criminal law, communications privacy law, and "intellectual property claims." In interpreting these exclusions, courts agree that Congress meant to exclude federal intellectual property claims, such as copyright and trademark, but they disagree whether state-law intellectual property claims (or claims that arguably could be classified as intellectual property claims, such as the right of publicity) are also exempted from the broad immunity protection Section 230 provides. Finally, Section 230 does not immunize the actual creator of content. The author of a defamatory statement, whether he is a blogger, commenter, or anything else, remains just as responsible for his online statements as he would be for his offline statements.

Online Activities Covered by Section 230

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Courts have consistently held that exercising traditional editorial functions over user-submitted content, such as deciding whether to publish, remove, or edit material, is immunized under Section 230. As one moves farther away from these basic functions, immunity may still exist, but the analysis becomes more fact-specific. We analyze in detail the types of activites that are covered by Section 230 and those activities that fall outside its protections in the Online Activities Covered by Section 230 and Online Activities Not Covered by Section 230 pages of this legal guide. (We strongly advise that you review these pages if your activities extend beyond traditional editorial functions.)

Summary

Section 230 of the Communications Decency Act grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from tort liability so long as the information at issue is provided by a third party. Relatively few court decisions, however, have analyzed the scope of this immunity in the context of "mixed content" that is created jointly by the operator of the interactive service and a third party through significant editing of content or the shaping of content by submission forms and drop-downs. So what are the practical things you can take away from this guide? Here are five: If you passively host third-party content, you will be fully protected under Section 230. If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove, or edit material, you will not lose your immunity unless your edits materially alter the meaning of the content. If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity. If you encourage or pay third-parties to create or submit content, you will not lose your immunity. If you use drop-down forms or multiple-choice questionnaires, you should be cautious of allowing users to submit information through these forms that might be deemed illegal. To follow recent developments in the law concerning these immunity provisions, see our Section 230 summary page, where you will find background on Section 230, links to our legal guide materials, and feeds showing recent legal threats from our database, blog posts, and news.

dmlp.org - Immunity for Online Publishers Under the Communications Decency Act

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