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.

In order to avail oneself of the immunity, it is important to understand how to assert it. In particular, internet lawyers should know that claiming CDA immunity should be done as an affirmative defense. While it may not serve as immunity against all causes of action, it is one that must be asserted affirmatively in order to use it.

On the other hand, failure to assert it as an affirmative defense may lead a court of law to hold that the immunity has been waived. Therefore, procedurally failing to assert it as an affirmative defense may lead to losing such immunity. In addition, as noted above, the role the website operator takes with regard to user-generated content can dictate the availability of the defense. In particular, providing content and other information that may encourage participation in the wrongful act alleged may lead to no immunity.

Ultimately, determining whether or not CDA immunity applies under Section 230 is a fact intensive matter. Internet lawyers experienced in handling issues faced by internet service providers, dealing with user-generated content, and media law matters in general should be consulted. Contact Traverse Legal’s Attorneys today for more information.