CDA Section 230 Article, BBA April 2009

Recent Developments under Section 230of the Communications Decency ActBoston Bar AssociationApril 29, 2009

Lee T. Gesmer, Esq.Gesmer Updegrove LLP40 Broad StreetBoston, MA 02109------------------------------lee.gesmer@gesmer.comhttp://www.gesmer.comhttp://www.MassLawBlog.com

My thanks to Leon Schwartz, NortheasternUniversity School of Law ’10, for his assistancein preparing these materials.

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Boston Bar Association, April 29, 2009Recent Developments under Section 230of the Communications Decency Act

I. The State of the Law Before CDA Section 230

Section 230 of Title 47 of the United States Code (47 U.S.C. Section 230)provides website operators broad legal immunity for third-party content.Before Section 230 was enacted in 1996 the courts were divided on websiteliability for user generated content. In the 1995 Stratton Oakmont case, the plaintiffssued Prodigy (an interactive computer service similar to that operated by AmericaOnline) for defamatory comments made by an unidentified party on one of Prodigy’sbulletin boards. The court held Prodigy to the strict liability standard typically applied tooriginal publishers of defamatory statements (e.g. books, magazines and newspapers),rejecting Prodigy’s claims that it should be held to the lower “knew or should haveknown” liability standard usually reserved for distributors. The court reasoned thatProdigy had acted more like an original publisher than a distributor, both because it hadadvertised its practice of controlling content on its service and because it had activelyscreened and edited messages posted on its bulletin boards.The Stratton Oakmontcase threatened to put online service pr

o

vider

s

in the

a

wk

ward position of taking a hands-off policy to avoid lia

bility

for third-party contentposted on their sites until notified of a possibly illegal posting, and then having toassess the vali

dity

of a complaint and respond promptly and

reasonably

to avoid liability.Stratton Oakmont was viewed as a threat to the growth of the Internet, andenactment of Section 230 was in large part a legislative reaction to this case, andconcern that other courts would rule similarly if federal legislation wasn't used to provideimmunity.See Stratton Oakmont Inc. v. Prodigy Services Co., 1995 N.Y. Misc. Lexis 229(Nassau Co., N.Y., Sup. Ct. 1995)(Internet service provider (ISP) could be heldliable for defamation as a publisher if it retained control over the postings on itssite, even though it did not create or assist in the creation of the allegedlydefamatory statements; Prodigy had screened/edited content); see also Cubby,Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991)(treating ISP asconduit, not publisher, and therefore refusing to impose liability for third-partycontent).

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Boston Bar Association, April 29, 2009Recent Developments under Section 230of the Communications Decency Act

II. The Key Provisions of Section 230

The two key provisions of Section 230 are presented below. The effect of the lawhas been for the courts to treat web sites that published third-party content as “conduits”of that information (such as a telephone/common carrier had traditionally been treated),rather than a distributor (to which a “knew or should have known” standard would apply)or a publisher (to which strict liability would apply).The second provision, (c)(2), is commonly referred to as the “good Samaritan”provision, since is allows a web site to take down offensive content, without that actionconverting the web site from a conduit into a publisher or distributor. In effect, it allowsa web site to exercise the privileges of a publisher without risking the strict liability thataccompanies that status for traditional publishers (subject to constitutional defenses in thecase of public figures).Section 230(c)(1) –No

provider

or

user

of an

interactive computer service

shall be treated asthe

publisher

or

speaker

of any information provided by another

information content provider

. (key terms bolded)Section 230(c)(2) –No provider or user of an interactive computer service shall be held liableon account of—(A) any action voluntarily taken in good faith to restrict access to oravailability of material that the provider or user considers to beobscene, lewd, lascivious, filthy, excessively violent, harassing, orotherwise objectionable, whether or not such material is constitutionallyprotected

III. The Meaning of "Interactive Computer Services" Under Section 230

The term “interactive computer services” has been interpreted very broadly by thecourts. The courts have repeatedly rejected attempts to limit the reach of Section 230 to