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.

Simply put, courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant’s status or conduct as a publisher or speaker.  If it does, the first exclusion to section 230 precludes liability.  Courts have defined the publisher to mean someone who reviews material submitted for publication, even edits it to a certain extent, and then decides whether to publish it.   And a speaker actually submits the material that will be published.   Either way, the action requires the court to treat the defendant as the publisher or speaker of content provided by another, unity under section 230 likely applies.

Determining whether the website operator is a publisher or speaker will likely determine the outcome of a case.  Since the Communication Decency Act often is implicated in cases dealing with defamation, fraud, obscenity, assault, harassment, and other related torts, understanding whether the website operator merely provided a forum for user-generated content to  be published or somehow encouraged or participated in illegal behavior as a speaker should help determine the outcome.  While it will likely still be referred to as CDA immunity, the analysis the courts are performing, and one that attorneys should be aware of, tends to focus on the publisher or speaker determination.

Please contact an internet lawyer today to discuss.