Section 230 Communications Decency Act Does Not Provide An Absolute Immunity.

July 2nd, 2009

Internet service providers often cite Section 230 of the Communications Decency Act as an absolute shield to liability for content on a website operated by them.  However, Section 230 carries with it numerous exceptions.

Eric Goldman at the Technology & Marketing Law Blog has identified three examples where websites will always remain liable for first party content.

The first is where the website operator posts their own content.  In these situations they are held liable because they are not simply a computer service provider but rather a content provider.  Just as a user can be responsible for the user generated content it provides, the website operator can be responsible and liable for that which it provides on a website.

The second example pertains to marketing representations.  In such instances where the website operator makes marketing representations, they may be liable under laws related to contract or false advertising.  These particular situations require the most in-depth analysis and legal knowledge.

Finally, the recent case of Barnes v. Yahoo held that a website may be liable under promissory estoppel if it promises, and therefore assumes an obligation, to remove third party content and fails to do so.  The question becomes how far reaching this decision will be.  For example, will a website operator be held liable when it promises to alter the user generated content or provide clarification of its own pertaining to that content?  Issues such as this are likely to arise, and a review of the specific facts pertaining to that user generated content or website operator actions is critical.

Ultimately, internet service providers that allow for user generated content must understand the limits of Section 230 Immunity. Contact an experienced internet lawyer today to understand the application of the Communication Decency Act to your particular matter.

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