Section 230 of the CDA and Website Defamation Immunity

Section 230 of the CDAEnacted in 1996, and codified at 47 U.S.C. § 230, Section 230 of the Communications Decency Act (“CDA”) grants immunity to Internet service providers (“ISPs”) for defamatory user content. To put it another way: Because of this law, judges will rarely hold website operators responsible for libelous user comments.

What does Section 230 of the CDA do?

Section 230 of the CDA grants immunity to Internet service providers (i.e., website operators, hosting companies) for third-party (user) defamation. Essentially, it’s why in the United States, individuals are held responsible for defamatory comments posted to Facebook, but Facebook, the company, isn’t held liable for libelous user content.

When deciding on Section 230 of the CDA, lawmakers reasoned that websites are information conduits, not engaged publishers, and shouldn’t be held responsible for third-party statements. In other words, since Facebook doesn’t actually “post” the information on peoples’ profiles, it can’t be deemed liable for defamation, as the “publisher.”

Why are print media publishers held responsible for defamation, but website operators aren’t?

In contrast, the publisher of a print newspaper — like the Wall Street Journal — can be held liable for libel because publishers decide the content of their papers and periodicals.

Let’s take a look at the two main things judges consider when hearing a Section 230 CDA case:

Section 230(c)(1) – 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(c)(2) – No provider or user of an interactive computer service shall be held liable on account of- (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Notice the broad immunity scope? That’s because in 1996, when lawmakers first drafted the bill, they didn’t fathom today’s Web.

Notable Section 230 of the CDA Court Cases?

Websites rarely forfeit immunity under Section 230 — unless they act as the content provider (e.g., the author of the posting). Furthermore, judges sometimes hold site operators liable for edits that alter the meaning of content.

The big question: “What kind of immunity is provided by Section 230?” Do Judges EVER Hold Websites Responsible For Defamation?

Section 230 of the CDA case law favors broad immunity. However, Section 230 does not act as a shield for website operators who are producing defamatory content.

Notable Section 230 Lawsuits

Zeran v. America Online, Inc.: The Lawsuit That Prompted Section 230

Domestic Terrorist Bombs Building; A tasteless Ad Shows Up On AOL

In 1995, a domestic terrorist bombed the Alfred P. Murrah Federal Building. One-hundred-twenty-six people perished; six-hundred-eighty were injured. Days later, an advertisement appeared on America Online’s (AOL’s) forums promoting distasteful t-shirts donning quips like “Visit Oklahoma, it’s a BLAST!”Tthe ads were immediately noticed and widely criticized. Included in the post was the home phone number of a Mr. Kenneth M. Zeran.

Identified Man Had Nothing To Do With Offensive Ad

Mr. Zeran had no knowledge or involvement with the t-shirts, but his inbox was soon teeming with death threats and other hate. Zeran notified AOL; the post was removed, but another quickly resurfaced. Zeran contacted the FBI. AOL removed the content, but new posts kept coming. When a radio show publicized the scandal, Zeran had to be placed under protective surveillance. The phone calls persisted for several weeks.

Eleven months later, Zeran filed a lawsuit against AOL. He argued that AOL didn’t properly handle the situation, even after Zeran brought the erroneous posts to AOL’s attention. In a previous court case (Cubby, Inc. v. CompuServe Inc.) the court ruled that defendants couldn’t be held liable for passing on information of which they had no knowledge. As such, Team Zeran was confident in their case.

But after several trials and appeals, AOL prevailed.

To ensure nothing like this happened again, politicians passed Section 230 of the Communications Decency Act, which states:

“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.”

Jones v. Dirty World Entertainment Recordings, LLC.

Plaintiff Sarah Jones was a part-time Cincinnati Bengals cheerleader and high school teacher. She was also the subject of several postings on infamous gossip site, (owned by Dirty World Entertainment). The postings, added by website users, alleged that Jones had slept with every Bengal player, had sex in her classroom, and likely had STDs. Despite Jones’ removal requests, the offending statements were not taken down.

Jones sued, claiming the statements – which included commentary by site founder Nik Richie – were libelous and defamatory, and that they impacted her personal life, teaching position, and Bengals’ status.

A January 2013 trial resulted in a deadlocked jury; Judge William Bertelsman eventually declared a mistrial.

A retrial found the jury delivering a unanimous verdict in favor of Jones. Judge Bertelsman explained that Section 230 didn’t apply in the case; because by adding his commentary, Richie acted as an editor.

Update: The decision was overturned on appeal.

Other Significant Section 230 of the CDA Cases:

  1. Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal. Rptr.3rd 55, 146 P.3d 510, 514 (Cal. 2006)
  2. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)

Do you have a legal issue related to Section 230 of the CDA? If so, get in touch with Kelly / Warner Law today.

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