Section 230

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.

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.

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 entities, including user-generated content websites, that qualify as a "provider or user" of an "interactive computer service." However some criticize Section 230 for leaving victims with no hope of relief where the true tortfeasors cannot be identified or are judgment proof. For example, in Michelangelo Delfino v. Agilent Technologies, (2006) 145 Cal. App. 4th 790, a California Appellate Court unanimously concluded that an employer that provides Internet access to its employees qualifies as a "provider ... of an interactive service" under section 230, and is protected from state tort claims arising from an employee's use of the employer's e-mail system to send threatening messages.

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). In Perfect 10, Inc. v CCBill LLC, 481 F.3d 751 (9th Cir. Mar. 29, 2007; amended opinion issued May 31, 2007) the Court of Appeals ruled that the exception for intellectual property law applies only to federal intellectual property law, reversing a district court ruling that the exception applies to state right of publicity claims. Cf. Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion).

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:

• Chicago Lawyers' Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008) (CDA immunity applied to Craiglist on Fair Housing Act claims based on discrimination in postings);
• Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. Feb. 13, 2007) (social networking site immune from negligence and gross negligence liability for failing to institute safety measures to prevent sexual assaults of minors and failure to institute policies relating to age verification);
• Delfino v. Agilent Technologies, 145 Cal. App. 4th 790 (2006), cert denied, 128 S. Ct. 98 (2007) (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 as a "user of interactive computer services" from liability for republication 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) (CDA immunity applied to eBay for claims based on forged autograph sports items purchased);
• 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 to a minor under state law claims);
• Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) (CDA applied to state claims of negligence based on "chat room marketing" of obscene photographs of minor by third party);
• Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997) (immunity applied to claim that AOL unreasonably delayed in removing defamatory messages posted by third party, failure to post retractions, and failure to screen for similar postings)

Claims of immunity rejected

Plaintiffs have successfully argued in a handful of cases that an "interactive computer service" was not entitled to Section 230 immunity because the person or entity in question was an "information content provider" with respect to the information at issue. In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,. the Ninth Circuit Court of Appeals ruled that the Roommates.com roommate matching service was not entitled to immunity under Section 230(c)(1) for claims brought under the federal Fair Housing Act. The court concluded that because of the manner in which the service elicited information from users concerning their roommate preferences, and the manner in which it utilized that information in generating roommate matches, the matching service created or developed that information within the meaning of Section 230, and thus was responsible for it as an "information content provider." However, in October 2007, the Ninth Circuit withdrew the panel opinion and granted a rehearing en banc.

Two such cases have involved the Web site www.badbusinessbureau.com, which allows users to upload "reports" containing complaints about businesses with which they have dealt. In MCW v. badbusinessbureau.com (N.D. Tex. 2004), 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. See also Hy Cite Corp. v. badbusinessbureau.com (D. Ariz. 2005) (defendant was an "information content provider" under Section 230). In another case involving the www.badbusinessbureau.com Web site, a federal district court ruled that a claim of immunity under Section 230 of the Communications Decency Act does not preclude the exercise of long-arm jurisdiction over the party claiming such immunity. Energy Automation Systems, Inc. v. Xcentric Ventures, LLC (M.D. Tenn. May 25, 2007).

Section 230 and the Fair Housing Act

In May 2007, the Ninth Circuit issued an opinion restricting Section 230 immunity for postings that violate the Fair Housing Act. The Court was concerned in particular about online forms that structure data input and search results, and found that those structured forms constitute significant contributions from the service provider that are not immune from liability.

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.

Customers of Craigslist had posted advertisements for rental properties 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 appealed the decision to the Seventh Circuit.

The appeal was argued on February 15, 2008 before the Seventh Circuit. Chief Judge Frank Easterbrook issued an opinion on March 14, 2008 affirming the decision by the district court. The court noted the burden and ineffectiveness of imposing a duty on Craigslist to eliminate such postings: "[I]f postings had to be reviewed before being put online, long delay could make the service much less useful, and if the vetting came only after the material was online the buyers and sellers might already have made their deals. Every month more than 30 million notices are posted to the Craigslist system...fewer than 30 people...operate the system[.]" Additionally, the court stated "[u]sing the remarkably candid postings on Craigslist, the [plaintiffs] can identify many targets to investigate...and can collect damages from any landlord or owner who engages in discrimination[; but,] cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful discrimination."

Legislation in other countries

Legislation in other countries lacks the protections afforded by the Act.

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.

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.

External links

• FCC text of the full act.
• Section 230
• Cybertelecom :: The Communications Decency Act
• Electronic Frontier Foundation FAQ on Section 230
• WikiNews: Craigslist sued for hosting discriminatory housing ads
• Fair Housing Lawsuit Against Craigslist.org Has Been Dismissed
• Wikimania 2006: Section 230: At the Gates between Liability for Harmful Speech and Wikipedia audio lecture.
• Delfino v. Agilent published opinion
• Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers Under Section 230 of the Communications Decency Act