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”.

If the defendant is in fact deemed an information content provider, it will no longer be able to claim immunity under Section 230.  Instead, in those cases where a defendant forces its users to provide discriminatory information as a condition to access, rather than simply providing neutral tools to enable the user to perform an unlawful or elicit act through user generated content or otherwise, liability may result.

It is worth noting that Section 230 does not necessarily provide immunity as it relates to intellectual property law.  For example, there is no immunity for contributory liability for trademark infringement, right of publicity claims, and other related claims.  Ultimately, should an entity qualify as an information content provider with respect to the information at issue, Section 230 immunity will not apply.  Thus, an understanding of what an ISP, web host, or other service provider must do in order to shield itself of liability in connection with user generated content is critical.