Section 230 Update: March 2020

March 17th, 2020

Section 230 of the Communications Decency Act continues to draw a lot of commentary, and attention from Congress.

Section 230: What You Don’t Know Might Destroy the Internet | Jess Miers | TEDxSantaClaraUniversity

Here are some updates on recent cases and proposed legislation.

  • Why Section 230 Matters And How Not To Break The Internet: Section 230(c)(1) says simply that “No provider or user of an interactive computer service [content host] shall be treated as the publisher or speaker of any information provided by another information content provider [content creator].” Many Section 230 critics, especially Republicans, have seized upon this wording, insisting that Facebook, in particular, really is a “publisher” and so should be held “accountable” as such. This misses the point of Section 230(c)(1), which is to abolish the publisher/distributor distinction as irrelevant.
  • Significant Changes to Section 230 are on the Horizon:  These proposals are already being met with criticism. Nevertheless, given techlash and the politics on the Hill, a DOJ recommendation to rewrite Section 230 along these lines would carry significant weight in Congress.
  • Modifying Section 230 Will Give More Censorship Power To Trump; And Lock In Facebook’s Dominance: What’s really incredible in all of this is how little those looking to modify or remove 230 seem to even understand 230. They seem to blame all sorts of societal problems on 230, even though all 230 has done is allow people to express themselves. And from there, the complaints against 230 are often contradictory. Some are worried that two much speech is silenced through moderation, while others complain that not enough speech is silenced.

The modern internet has grown up under the protection of Section 230. Allowing service providers immunity from liability for what their users post, liability is placed where it belongs.

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. Read More »

Communication Decency Act Section 230 Immunity: Defining an Internet Service Provider as a Publisher or Speaker

June 9th, 2009

People often refer to the Communication Decency Act’s (CDA) ability to provide immunity to internet service providers who publish third party material.  Interestingly enough, the statute itself does not use the word immunity but rather provides an exclusion from liability.  That exclusion considers whether the internet service provider is publisher or a speaker.  In fact, courts are beginning to adhere to the publisher or speaker definition in assessing the applicability of the exception. Read More »

Section 230 Communications Decency Act Immunity: How to Use It and How to Lose It

June 8th, 2009

The Communications Decency Act (CDA) provides immunity to an internet service provider that merely publishes user-generated content, as long as its actions do not rise to the level of a content provider. Simply put, the closer the internet service provider is to a service provider than to a content provider, the more likely that the Section 230 immunity will apply. CDA immunity is often sought by internet service providers when parties file defamation and related torts against the website operator. Read More »

Web Agreements Must Address User-Generated Content in Order to Receive Section 230 Immunity

June 8th, 2009

So many websites today are driven by user-generated content. While all websites should contain website agreements, such as terms of use, privacy policy, and a copyright policy, those websites that allow for user-generated content should absolutely ensure that they have such agreements.  For sites with UGC, web site owners need to ensure that they are protected by Section 230 of the Communications Decency Act if possible. In particular, the following should be considered: Read More »

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: Read More »

User Generated Content: Section 230 Immunity Exception Requires That You Not Be An Information Content Provider

May 29th, 2009

Section 230 of the Communications Decency Act of 1996, commonly referred to as Section 230 by those in internet law space, provides immunity from civil liability for both providers of and users of “an interactive computer service” that publish information provided by others.  This essentially shields web hosts from liability for user-generated content that may be deemed unlawful.  As we learned in the Fair Housing Council of San Fernando Valley v. case as well as subsequent decisions , in order to avail oneself of the immunity offered under Section 230, the defendant must not be an “information content provider”. Read More »

Section 230 Communications Decency Act of 1996

March 25th, 2009

Section 230 of the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230 , immunizes providers of interactive computer services from liability from user generated content.  An "interactive computer service" is defined as "any information service, system, or access software provider that providers or enables computer access by multiples users to a computer server."  The CDA specifically states that "No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  Thus, as long the computer service provider is not also an information content provider, or someone "responsible, in whole or in part, for the creation or development of" the offending conduct, the immunity of the CDA applies. Read More »