How To Know When Section 230 Communications Decency Act Immunity Applies

May 29th, 2009

When dealing with user-generated content, the issue often arises whether immunity under the Communications Decency Act, Section 230 , applies so as to shield the computer service provider from liability for information originating with a third party user of the service.  Courts generally address three separate inquiries when determining an answer.  The court will look to the following:

  1. Whether the defendant is a provider of an interactive computer service;
  2. If the postings at issue are information provided by another information content provider; and
  3. Whether plaintiff’s claims seek to treat the defendant as a publisher or speaker of the third party content.

Ultimately, the most important inquiry for determining whether or not immunity applies is the role of the defendant as it pertains to the statements, or the content, at issue.  It is more often than not beyond dispute that the defendant is in fact an interactive computer service.  However, the question becomes whether user-generated content can be attributed to the website operator so as to make it responsible, in whole or n part, for the creation or development  of information.  If the website operator is itself deemed an information content provider, then immunity would not apply.  Therefore, an analysis of the website operator’s involvement with the user-generated content is a prerequisite to determining whether or not liability may exist.