Section 230 of the Communications Decency Act
Photograph by K Mickon Flickr.
Now, it Optical communication may be easier to identify when an ICP or website has contributed any kind of actual content, large or small, to a finished product, but legal scholars have Section 230 of the Communications Decency Act reminded their readers that developing content is also cause for losing immunity. “Control,” as Davis explains, “encompasses control over the ultimate shape and destiny of the final product.” He compares the role of an ISP or website owner to that of a director, and he explains that “the director of a Section 230 of the Communications Decency Act movie might not contribute any dialogue, set design, or other tangible elements to a film; however, directors are often considered co-authors of movies in which they exert ultimate control over the shape of the final product.” This is what Glad refers to as “facilitation,” a concept which relates directly back to Julian’s notion that prior knowledge could lose an ISP or website its immunity rights. Supp.
However, Plaintiffs can successfully set aside CDA 230 Immunity in cases that allege that a website is an Information/Internet Content Provider, or Information/Internet Content Facilitator with respect to the information at issue. According to Madeline Rodriguez in her seminal law review article entitled Reexamining Section 230 of the CDA and Online Anonymous Speech: Defamation on the Internet and the Websites That Facilitate It, there are three tiers of liability under the CDA 230, from lowest liability to greatest: (1) Internet Service Providers ( ISPs ); (2) Internet/Information Content Providers ( ICPs ); and (3) Internet Content Facilitators ( ICFs ). According to her article, and her cited sources by Brandy Jennifer Glad, “Determining What Constitutes Creation or Development of Content Under the Communications Decency Act,” Southwestern University Law Review 34 (2004), 258, Barry J. This new rule would not require AOL to create the column completely on its own, but simply contribute any part of the form in which the column is finally expressed to the public.
The bill imposes criminal penalties on anyone who transmits in interstate or foreign commerce a communication intended to coerce, intimidate, harass, or cause substantial emotional distress to another person, using electronic means to support severe, repeated, and hostile behavior. 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. To begin, Glad highlights that the when “editorial control is conferred immunity under Section 230,” there is presumption that the “‘form and message’ of the content” will not change.
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 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. 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.
For example, if in the Drudge case AOL had contributed its own content, no matter how significant, to Matt Drudge’s columns, immunity would not have been granted to the ICP. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. Section 230 s coverage is not complete: it excepts federal criminal liability and intellectual property law.
Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion), but see Doe v. The plaintiff s child downloaded pornography from a public library s computers which did not restrict access to minors.
Glad and other critics are right to acknowledge that Section 230 was created to provide immunity for ISPs when “traditional” editorial control takes place. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H.
In Perfect 10, Inc. Section 113 was signed into law by President George W.
. denied, 524 U.S.
Glad writes that the first step to establishing whether an “ISP helped to create or develop content” is to “look to the extent of control the ISP exercised over the text.” The easiest way to establish a level of control is to return to the publishing aspect of running an Internet service provider or website and review the company’s editorial policies. This legal lesson is borne out in the federal cases involving JuicyCampus.com, AutoAdmit.com, Roommates.com, MySpace.com, Facebook.com, Blumenthal v.
There are limitations, however, and this should not be an invitation to exert any kind of editorial functions without being held responsible for these actions. He was convicted and sentenced to two years probation on May 28, 1998.
1966). Google was not responsible for misleading advertising created by third parties who bought space on Google s pages.
With this new standard and the existence of ICFs in mind, the decision in the Roommates.com case seems reasonable—posing specific questions to users and forcing them to answer with a limited number of responses denotes an obvious role in developing the final product of the user’s profile. Also, websites like JuicyCampus.com, DontDateHimGirl.com, and AutoAdmit.com could be considered facilitators under Glad and Julian’s standards because based on the goals their websites set forth at their creation, they should have had a reasonable and almost definite expectation that defamation was going to occur on their server. A defendant must satisfy each of the three prongs to gain the benefit of the immunity: 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 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.
Additionally, a Federal Statute enacted in 2006 possibly makes the content of the RipOff Report (www.ripoffreport.com) and its transmissions criminal, and have apparently never been brought as charges to date. If an ISP chooses to edit the message and meaning or form in which it was originally expressed is somehow altered, Glad ascribes that immunity should not be granted. Others feel that this interpretation does not go far enough.
who receives the communications . 47 U.S.C.
It would be impossible for service providers to screen each of their millions of postings for possible problems. The court found the creative pleading of money laundering did not cause the case to fall into the crime exception to Section 230 immunity. 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.
He explained that this suggestion is in accordance with the original intent of the CDA because “once the ISP takes an active editing role it becomes the ‘co-author’ and falls outside the CDA protection.” Waldman claims that the statute’s requirement that ISPs act in “‘good faith’” is violated if something like a defamatory statement on Autoadmit.com goes through an editorial process and the editors still choose to publish it. utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet .
Davis, “Untangling the ‘Publisher’ Versus ‘Information Content Provider’ paradox of Section 230: Toward A Rational Application of the Communications Decency Act in Defamation Suits Against Internet Service Providers,” New Mexico Law Review 32 (Winter 2002), if an ICP, and certainly an ICF, has reason to know, or anticipate, that at least some of the postings on their website are defamatory, false, anonymous, annoying, or harassing in nature, then they will be considered a co-author of the defamatory, false, anonymous, annoying, or harassing postings, and just as liable as the original poster, losing their CDA 230 immunity completely, and be subject to full monetary, legal, and equitable damages by an aggrieved party. This also goes for website owners who edit even slightly, or alter the defamatory, false, anonymous, annoying, or harassing material by purposely indexing the postings to search engines, or in some way altering the keywords or metatags on those postings to boost their search engine visibility, because they then become co-authors or facilitators of those defamatory, annoying, harassing, threatening, or anonymous website postings, and can not claim that they are merely providers of an internet service that is immunized by CDA 230. Leaving it on the Internet so that it can be read several times over and spread throughout the web is negligent and should therefore be punished with a lack of immunity. With respects to control, another school of thought which has arisen deals more with the actual creation or development of material rather than just the editing that material goes through.
2006) . 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.
“Allowing immunity for someone like an who provides some, though not all, of the content” is not consistent with this language and seems to violate the original intent of the statute. Penalties include two years in prison and onerous fines.
According to TITLE I--ENHANCING JUDICIAL AND LAW ENFORCEMENT TOOLS TO COMBAT VIOLENCE AGAINST WOMEN, Section 113. Drudge, and in Zeran v.
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. 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; • 47 U.S.C. § 230 • Margaret Jane Radin et al., Internet Commerce: The Emerging Legal Framework 1091-1136 (2nd ed. 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.
v. As Barry Waldman suggests, actively editing statements made by other users should always result in liability.
§§ 230(e)(1) (criminal) and (e)(2) (intellectual property); see also Gucci America, Inc. This act was passed to specifically enhance service providers ability to delete or otherwise monitor content without themselves becoming publishers.
Preventing Cyberstalking . A website like DontDateHimGirl.com which asks its readers to submit information about men who other women should stay away from romantically must anticipate that not every user is going to be honest, accurate, or shy away from unflattering embellishments.
While the degree to which these standards should be applied seems to vary among legal critics, their arguments suggest that examining the “extent and quality” of control which ISPs and websites possess and exert is a viable solution to the conundrum that Section 230 has created. 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.
The statute claim’s that creating or developing “in whole or in part” can force immunity to be taken away, but this has not been the case in every circumstance. Waldman, “A Unified Approach to Cyber-Libel: Defamation on the Internet, a Suggested Approach,” Richmond Journal of Law & Technology, 6 (Fall 1999), 9, and Bryan J.
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 false profile. of an interactive service. Legislation in other countries may lack the protections afforded by the Act. Directive 2000/31/EC establishes a safe haven regime for hosting providers: In Dow Jones & Company Inc v Gutnick, 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), 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. Failing to investigate the material or to make inquiries of the user concerned may amount to negligence in this context: Jensen v Clark 2 NZLR 268. Directive 2000/31/CE was transposed into the LCEN law.
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. shall be fined under title 18 or imprisoned not more than two years, or both. Recent federal legislation in the Cybersecurity Act of 2009 promises to zealously combat such widespread abuse of anonymous defamation online .
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 a harmful files. AOL, 129 F.3d 327, 330 (4th Cir.
Section 113 amends the statute to include any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet. Section 113, entitled, PREVENTING CYBERSTALKING, states that the prohibited criminal acts apply to whoever (1) in interstate or foreign communications (A) by means of a telecommunications device knowingly (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person. Specifically, H.R. 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.
Bush on January 5, 2006. America Online, Inc., the Court notes that Congress enacted § 230 to remove the disincentives to self-regulation created by the Stratton Oakmont decision.
The specter of tort liability in an area of such prolific speech would have an obviously chilling effect. 2001) (no immunity for contributory liability for trademark infringement).
1997), cert. 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 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.
223, the Telecommunications Harassment Statute that is rooted in the Communications Act of 1934. Since Section 230 barred Zeran from obtaining damages from AOL, he obtained no redress for the harms the messages caused, including death threats that required the involvement of the FBI. Courts in the United States have upheld Section 230 immunity in a variety of factual contexts and on numerous legal theories.
Linda Sánchez (D-CA) has introduced the “Megan Meier Cyber Bullying Prevention Act” (H.R. Yahoo!, the High Court ordered Yahoo! to take affirmative steps to filter out Nazi memorabilia from its auction site.
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. 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.
It amends 47 U.S.C. For example, the plaintiff in Zeran was clearly defamed by an unidentified user of AOL s bulletin board, but was unable to bring suit against the original poster due to missing records.
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. 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.
Green claimed AOL failed to adequately police its services and allowed third parties to defame him and inflict intentional emotional distress. Hall & Associates, 135 F.
. 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. 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.
Mar. v.
AOL. Pursuant to the definitions set forth in Section 230, an Internet provider could lose its immunity if it is found responsible, “in whole or in part,” for creating or developing information on the Internet. without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person .
In application the Federal Law has meant that you cannot anonymously annoy another person through the phone lines or through the internet using e-mail, weblogs, web postings, or in any other capacity using the internet or a computer. Andrea Julian agrees, and she strongly advocates that the “blanket immunity problem” could be solved if ISPs are no longer granted immunity in these situations where it is obvious that someone at the company “knew or should have known of the defamatory nature of the material and had the power to control its dissemination.” These critics base their suggestions on the idea that if someone is reading these posts either in advance or at some other point in the publishing process, that individual should make an honest effort to screen the content which is obviously objectionable.
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. Whether this control constitutes creation or development of the content on Internet servers is an issue which the courts have not addressed properly up to this point. 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.
The court concluded that an employer that provides Internet access to its employees qualifies as a provider . and its then president Timothy Koogle were also criminally charged, but acquitted. 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.
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. 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.
And even more recently, Rep. Article 6 of the law establishes safe haven for hosting provider as long as they follow certain rules. In LICRA vs.
CCBill LLC, 481 F.3d 751 (9th Cir. Cf.
See, e.g., Zeran v. Since the owners of this website possess the power necessary to control the dissemination of this information, this solution suggests that increased liability should be one of the expected hazards when creating such a website.
The Does daughter had lied about her age and communicated over MySpace with a man who later sexually assaulted her. In Zeran v.
3402, the Violence Against Women and Department of Justice Reauthorization Act of 2005, which reauthorizes the Violence Against Women Act for years 2007-2011, makes amendments to criminal and immigration law, consolidates major law enforcement grant programs and authorizes appropriations for the Department of Justice for years 2006-2009. The Oberlandesgericht (OLG) Cologne, an appellate court, found that an online auctioneer does not have an active duty to check for counterfiet goods (Az 6 U 12/01).
2d 409 (S.D.N.Y. Yahoo!, Inc.
Whoever . 2008) (230 does not immunize against state IP claims, including right of publicity claims) The Friendfinder court specifically discussed and rejected the Ninth Circuit s reading of intellectual property law in CCBill and held that the immunity does not reach state right of publicity claims.
The act was passed in part in reaction to the 1995 decision in Stratton Oakmont, Inc. v.
The telecommunications statute prohibits anyone from using a telephone or a telecommunications device without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person. For example, it is alleged that the website RipOff Report (www.ripoffreport.com) owned and founded by Ed Magedson contains many hundreds of thousands of annoying, abusive, defamatory, threatening, or harassing postings on the website that are anonymous.
