Section 230 of the Communications Decency Act
Encyclopedia
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, codified at . Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others:
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:
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 Christopher 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. This act was passed to specifically enhance service providers' ability to delete or otherwise monitor content without themselves becoming publishers.
In Zeran v. America Online, Inc.
, the Court notes that "Congress enacted § 230 to remove the disincentives to self-regulation created by the Stratton Oakmont decision. 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. 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. The specter of tort liability in an area of such prolific speech would have an obviously chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. 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. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."
, 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), but see Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 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.
s 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, 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. 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. [This last sentence is pure opinion and presumes that AOL SHOULD have been liable for redress for said harms. This is opinion and not cited.]
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. 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. 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. 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. 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. Green claimed AOL failed to adequately police its services and allowed third parties to defame him and inflict intentional emotional distress. 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 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. 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. Google
was not responsible for misleading advertising created by third parties who bought space on Google's pages. The court found the creative pleading of money laundering did not cause the case to fall into the crime exception to Section 230 immunity.
Immunity for Orbitz
and CheapTickets
was upheld for claims based on fraudulent ticket listings entered by third parties on ticket resale marketplaces.
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. The plaintiff's child downloaded pornography from a public library's computers which did not restrict access to minors. 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. The Does' daughter had lied about her age and communicated over MySpace
with a man who later sexually assaulted her. 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 a county sheriff’s claims that its “erotic services” section constituted a public nuisance because it caused or induced prostitution.
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
and California housing discrimination laws. 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. The court concluded that an employer that provides Internet access to its employees qualifies as a "provider . . . of an interactive service."
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.
In LICRA vs. Yahoo!, the High Court ordered Yahoo! to take affirmative steps to filter out Nazi memorabilia from its auction site. Yahoo!, Inc. and its then president Timothy Koogle
were also criminally charged, but acquitted.
Germany, was charged with violating German child pornography
law
s because of the material CompuServe's network was carrying into Germany. He was convicted and sentenced to two years probation on May 28, 1998. He was cleared on appeal on November 17, 1999.
The Oberlandesgericht (OLG) Cologne, an appellate court, found that an online auctioneer does not have an active duty to check for counterfeit goods (Az 6 U 12/01).
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. 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."
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
of 1996 (a common name for Title V of the Telecommunications Act of 1996
Telecommunications Act of 1996
The Telecommunications Act of 1996 was the first major overhaul of United States telecommunications law in nearly 62 years, amending the Communications Act of 1934. This Act, signed by President Bill Clinton, was a major stepping stone towards the future of telecommunications, since this was the...
) is a landmark piece of Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
legislation in the United States, codified at . 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:
- The defendant must be a "provider or user" of an "interactive computer service."
- The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
- 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 ActCommunications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
was not part of the original Senate legislation, but was added in conference with the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, where it had been separately introduced by Representatives Christopher Cox (R-CA) and Ron Wyden
Ron Wyden
Ronald Lee "Ron" Wyden is the senior U.S. Senator for Oregon, serving since 1996, and a member of the Democratic Party. He previously served in the United States House of Representatives from 1981 to 1996....
(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
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
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.
Stratton Oakmont, Inc. v. Prodigy Services Co.
Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 , was a controversial 1995 U.S. New York Supreme Court decision which found that online service providers could be held liable for the speech of their users.-Facts:...
, which suggested that service providers who assumed an editorial
Editing
Editing is the process of selecting and preparing written, visual, audible, and film media used to convey information through the processes of correction, condensation, organization, and other modifications performed with an intention of producing a correct, consistent, accurate, and complete...
role with regard to customer content, thus became publishers, and legally responsible for libel and other torts committed by customers. This act was passed to specifically enhance service providers' ability to delete or otherwise monitor content without themselves becoming publishers.
In Zeran v. America Online, Inc.
Zeran v. America Online, Inc.
Zeran v. America Online, Inc., 129 F.3d 327 , cert. denied, 524 U.S. 937 , is a case in which the Fourth Circuit Court of Appeals determined the immunity of Internet service providers for wrongs committed by their users under Section 230 of the Communications Decency Act...
, the Court notes that "Congress enacted § 230 to remove the disincentives to self-regulation created by the Stratton Oakmont decision. 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. 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. The specter of tort liability in an area of such prolific speech would have an obviously chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. 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. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."
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 LLCPerfect 10, Inc. v. CCBill LLC
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 , is a U.S. court case between a publisher of an adult entertainment magazine and the webhosting, connectivity, and payment service companies...
, 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), but see Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 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.
Controversy
Section 230 is controversial because several courts have interpreted it as providing complete immunity for ISPs with regard to the tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s 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
Judgment proof
The term judgment proof is most commonly used in tort law contexts to refer to defendants or potential defendants who are financially insolvent...
. 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. 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. [This last sentence is pure opinion and presumes that AOL SHOULD have been liable for redress for said harms. This is opinion and not cited.]
Defamatory information
- Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997).
Immunity was upheld against claims that AOL
AOL
AOL Inc. is an American global Internet services and media company. AOL is headquartered at 770 Broadway in New York. Founded in 1983 as Control Video Corporation, it has franchised its services to companies in several nations around the world or set up international versions of its services...
unreasonably delayed in removing defamatory messages posted by third party, failed to post retractions, and failed to screen for similar postings.
- Blumenthal v. DrudgeMatt DrudgeMatthew Nathan Drudge is the American creator and editor of the Drudge Report, a news aggregation website. Drudge is self-described as being conservative and populist. Drudge has also authored a book and hosted a radio show and a television show.-Early years:Matthew Drudge was raised in Takoma...
, 992 F. Supp. 44, 49-53 (D.D.C. 1998).
The court upheld AOL's immunity from liability for defamation. 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. 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."
- Carafano v. Metrosplash.comCarafano v. Metrosplash.comCarafano v. Metrosplash.com, Inc., 339 F.3d 1119 , is an American legal case dealing with the protection provided an internet service provider under the Communications Decency Act United States Code Title 47 section 230...
, 339 F.3d 1119 (9th Cir. 2003).
The court upheld immunity for an Internet dating service provider from liability stemming from third party's submission of false profile. The plaintiff, Carafano
Chase Masterson
Chase Masterson, born Christianne Carafano on February 26, 1963 in Colorado Springs, Colorado, is an American actress and singer.-Career:...
, 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.
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).
Immunity was upheld for a website operator for distributing an email to a listserv where the plaintiff claimed the email was defamatory. 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'."
- Green v. AOL, 318 F.3d 465 (3rd Cir. 2003).
The court upheld immunity for AOL
AOL
AOL Inc. is an American global Internet services and media company. AOL is headquartered at 770 Broadway in New York. Founded in 1983 as Control Video Corporation, it has franchised its services to companies in several nations around the world or set up international versions of its services...
against allegations of negligence. Green claimed AOL failed to adequately police its services and allowed third parties to defame him and inflict intentional emotional distress. 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."
- Barrett v. RosenthalBarrett v. RosenthalBarrett v. Rosenthal is a 2006 California Supreme Court case concerning online defamation. The case resolved a defamation claim brought by Stephen Barrett, Terry Polevoy, and attorney Christopher Grell against women's health advocate Ilena Rosenthal and several others. Barrett and others alleged...
, 40 Cal. 4th 33 (2006).
Immunity was upheld for an individual internet user from liability for republication of defamatory statement on a listserv. 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.
- MCW, Inc. v. badbusinessbureau.com(RipOff Report/Ed Magedson/XCENTRIC Ventures LLC) 2004 WL 833595, No. Civ.A.3:02-CV-2727-G, (N.D. Tex. April 19, 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. The Web site, www.badbusinessbureau.com, allows users to upload "reports" containing complaints about businesses they have dealt with.
- Hy Cite Corp. v. badbusinessbureau.com (RipOff Report/Ed Magedson/XCENTRIC Ventures LLC), 418 F. Supp. 2d 1142 (D. Ariz. 2005).
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.
False information
- Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 830 (2002).
eBay
EBay
eBay Inc. is an American internet consumer-to-consumer corporation that manages eBay.com, an online auction and shopping website in which people and businesses buy and sell a broad variety of goods and services worldwide...
's immunity was upheld for claims based on forged autograph sports items purchased on the auction site.
- Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000).
Immunity for AOL
AOL
AOL Inc. is an American global Internet services and media company. AOL is headquartered at 770 Broadway in New York. Founded in 1983 as Control Video Corporation, it has franchised its services to companies in several nations around the world or set up international versions of its services...
was upheld against liability for a user's posting of incorrect stock information.
- Goddard v. Google, Inc.Goddard v. Google, Inc.Goddard v. Google, Inc., 640 F. Supp. 2d 1193 , is a case in which Jenna Goddard alleged that she and a class of similarly situated individuals were harmed by Google as a result of clicking allegedly fraudulent web-based advertisements for mobile subscription services...
, C 08-2738 JF (PVT), 2008 WL 5245490, 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. Dec. 17, 2008).
Immunity upheld against claims of fraud and money laundering. Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
was not responsible for misleading advertising created by third parties who bought space on Google's pages. The court found the creative pleading of money laundering did not cause the case to fall into the crime exception to Section 230 immunity.
- Milgram v. Orbitz Worldwide, LLCMilgram v. OrbitzIn Milgram v. Orbitz Worldwide, LLC, the New Jersey Superior Court held that online ticket resellers qualified for immunity under Section 230 of the Communications Decency Act , and that such immunity preempted a state law consumer fraud statute...
, ESX-C-142-09 (N.J. Super. Ct. Aug. 26, 2010).
Immunity for Orbitz
Orbitz
Orbitz Worldwide, Inc. is an Internet travel company headquartered in the Citigroup Center in Near West Side, Chicago, Illinois. Through its primary web site Orbitz.com, Orbitz Worldwide enables travelers to research, plan and book a broad range of travel products, facilitating 1.5 million flight...
and CheapTickets
CheapTickets
CheapTickets is an online travel services company focusing on the leisure market, offering airline tickets, hotel and Vacation rentals, rental cars, customized vacation packages, and cruises...
was upheld for claims based on fraudulent ticket listings entered by third parties on ticket resale marketplaces.
Sexually explicit content and minors
- Doe v. America OnlineAOLAOL Inc. is an American global Internet services and media company. AOL is headquartered at 770 Broadway in New York. Founded in 1983 as Control Video Corporation, it has franchised its services to companies in several nations around the world or set up international versions of its services...
, 783 So. 2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000)
The court upheld immunity against state claims of negligence based on "chat room marketing" of obscene photographs of minor by a third party.
- Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 692 (2001)
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. The plaintiff's child downloaded pornography from a public library's computers which did not restrict access to minors. 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.
- Doe v. MySpaceDoe v MySpaceDoe v. MySpace, 528 F.3d 413 is a 2008 Fifth Circuit Court of Appeals ruling that affirmed a lower court decision finding that MySpace was immune under the Communications Decency Act of 1996 from liability resulting from a sexual assault of a minor...
, 528 F.3d 413 (5th Cir. 2008)
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. The Does' daughter had lied about her age and communicated over MySpace
MySpace
Myspace is a social networking service owned by Specific Media LLC and pop star Justin Timberlake. Myspace launched in August 2003 and is headquartered in Beverly Hills, California. In August 2011, Myspace had 33.1 million unique U.S. visitors....
with a man who later sexually assaulted her. In the court's view, the Does' allegations, were "merely another way of claiming that MySpace was liable for publishing the communications."
- Dart v. Craigslist, Inc.Dart v. Craigslist, Inc.Thomas Dart, Sheriff of Cook County v. Craigslist, Inc., 665 F. Supp. 2d 961 , is a decision by the United States District Court for the Northern District of Illinois in which the court held that Craigslist, as an Internet service provider, was immune from wrongs committed by their users under...
, 665 F. Supp. 2d 961 (N.D. Ill. Oct. 20, 2009)
The court upheld immunity for Craigslist
Craigslist
Craigslist is a centralized network of online communities featuring free online classified advertisements, with sections devoted to jobs, housing, personals, for sale, services, community, gigs, résumés, and discussion forums....
against a county sheriff’s claims that its “erotic services” section constituted a public nuisance because it caused or induced prostitution.
Discriminatory housing ads
- Chicago Lawyers' Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc.Chicago Lawyers' Committee For Civil Rights Under Law v. CraigslistChicago Lawyers' Committee For Civil Rights Under Law v. Craigslist is a 2008 Seventh Circuit decision affirming a lower court ruling that Section 230 of the Communications Decency Act provides immunity to Internet service providers that "publish" classified ads that violate the Fair Housing Act...
519 F.3d 666 (7th Cir. 2008).
The court upheld immunity for Craigslist
Craigslist
Craigslist is a centralized network of online communities featuring free online classified advertisements, with sections devoted to jobs, housing, personals, for sale, services, community, gigs, résumés, and discussion forums....
against Fair Housing Act
Civil Rights Act of 1968
On April 11, 1968 U.S. President Lyndon B. Johnson signed the Civil Rights Act of 1968, also known as the Indian Civil Rights Act of 1968. Title VIII of the Civil Rights Act of 1968 is commonly known as the Fair Housing Act, or as CRA '68, and was meant as a follow-up to the Civil Rights Act of 1964...
claims based on discriminatory statements in postings on the classifieds website by third party users.
- Fair Housing Council of San Fernando Valley v. Roommates.com, LLCFair Housing Council of San Fernando Valley v. Roommates.com, LLCFair Housing Council of San Fernando Valley v. Roommates.com, LLC is a case in which the United States Court of Appeals for the Ninth Circuit, sitting en banc, held that immunity under Section 230 of the Communications Decency Act did not apply to an interactive online operator whose questionnaire...
, 521 F.3d 1157 (9th Cir. 2008) (en bancEn bancEn banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
).
The Ninth Circuit Court of Appeals
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
rejected immunity for the Roommates.com roommate matching service for claims brought under the federal Fair Housing Act
Civil Rights Act of 1968
On April 11, 1968 U.S. President Lyndon B. Johnson signed the Civil Rights Act of 1968, also known as the Indian Civil Rights Act of 1968. Title VIII of the Civil Rights Act of 1968 is commonly known as the Fair Housing Act, or as CRA '68, and was meant as a follow-up to the Civil Rights Act of 1964...
and California housing discrimination laws. 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.
Threats
- Delfino v. Agilent TechnologiesAgilent TechnologiesAgilent Technologies , or Agilent, is a company that designs and manufactures electronic and bio-analytical measurement instruments and equipment for measurement and evaluation...
, 145 Cal. App. 4th 790 (2006), cert denied, 128 S. Ct. 98 (2007).
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. The court concluded that an employer that provides Internet access to its employees qualifies as a "provider . . . of an interactive service."
Legislation in other countries
Legislation in other countries may lack the protections afforded by the Act.European Union
Directive 2000/31/EC establishes a safe haven regime for hosting providers:- Article 14 establishes that hosting providers are not responsible for the content they host as long as (1) the acts in question are neutral intermediary acts of a mere technical, automatic and passive capacity; (2) they are not informed of its illegal character, and (3) they act promptly to remove or disable access to the material when informed of it.
- Article 15 precludes member states from imposing general obligations to monitor hosted content for potential illegal activities.
Australia
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.
New Zealand
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.France
Directive 2000/31/CE was transposed into the LCEN law. Article 6 of the law establishes safe haven for hosting provider as long as they follow certain rules.In LICRA vs. Yahoo!, the High Court ordered Yahoo! to take affirmative steps to filter out Nazi memorabilia from its auction site. Yahoo!, Inc. and its then president Timothy Koogle
Timothy Koogle
Timothy Koogle was CEO and President of web company Yahoo! between 1995 and 2001 . He is currently still serving on the Yahoo! director's board as Vice Chairman . As well, he in no way contributes his last name with having anything to do with the naming of the popular search engine "Google"....
were also criminally charged, but acquitted.
Germany
In 1997, Felix Somm, the former managing director for CompuServeCompuServe
CompuServe was the first major commercial online service in the United States. It dominated the field during the 1980s and remained a major player through the mid-1990s, when it was sidelined by the rise of services such as AOL with monthly subscriptions rather than hourly rates...
Germany, was charged with violating German child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s because of the material CompuServe's network was carrying into Germany. He was convicted and sentenced to two years probation on May 28, 1998. He was cleared on appeal on November 17, 1999.
The Oberlandesgericht (OLG) Cologne, an appellate court, found that an online auctioneer does not have an active duty to check for counterfeit goods (Az 6 U 12/01).
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. 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."
United Kingdom
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;External links
- Full text of the Telecommunications Act of 1996.
- Citizen Media Law Project's primer on Section 230
- Cybertelecom :: The Communications Decency Act
- Electronic Frontier FoundationElectronic Frontier FoundationThe Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
FAQ on Section 230 - Kenneth Zeran Commentary
- Wikimania 2006: Section 230: At the Gates between Liability for Harmful Speech and Wikipedia audio lecture.