Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a piece of Internet legislation. It provides immunity from liability for providers and users of an interactive computer service who publish information provided by others. An immunity clause in the Act states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to be immune from liability. First, the defendant must be a provider or user of an interactive computer service. Second, the cause of action asserted by the plaintiff must view the defendant as the publisher or speaker of the harmful information at issue.Third, the information must be provided by another information content provider. That is, the defendant must not be the information content provider of the harmful information at issue.
Overview of Section 230 of the CDA
The CDA was passed to enhance service providers’ ability to delete or otherwise monitor content without them becoming publishers. In Zeran v. America Online, Inc., the 4th Circuit held that it was Congress intention in enacting § 230’s broad immunity to internet providers because when faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. The court held that Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.
The dividing line in determining whether an entity is an internet service provider or an internet content provider hinges on editorial publisher function and when something is a statement being made by the information content provider.
Significant Court Cases that Determine How the CDA is Interpreted
In Fair Housing v. Roommates.com, (1997), the 9th Circuit court held that the housing locator site, Roommates.com, was not immune under Section 230. Roommates was not a passive publisher of the content. The site had developed questionnaires to elicit potentially discriminatory information from users. Although the court found that Roommates.com was immune about open-ended questions that suggested no particular information to be provided by members, the court found that its search mechanism and e-mail notifications meant that it was neither a passive pass-through of information provided by others nor merely a facilitator of expression. The site categorized, channeled, and limited the distribution of users’ profiles. By doing this, Roommates provided an additional layer of information that created and developed the illegal activity in violation of the Fair Housing Act. The court therefore held that the site was an information content provider and not immune under the publisher provisions of the CDA. The court, however, upheld immunity for the descriptions posted by users in the “Additional Comments” section because these were entirely created by users.
In Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. (2009), the 4th Circuit court distinguished Roommates, and found that the structure and design of the website was not sufficiently contributing to the content to transform Consumeraffairs.com into an information content provider. The test seems to be the degree the internet provided is involved in creating the illegal activity. If the provider is passive there is likely no liability, but the more active a provider becomes the more likely the provider will be found liable for violating the CDA.
What are Civil Claims Available under the CDA?
Section 230 of the CDA provide broad protection to internet providers. There are exceptions though to the immunity clause of the CDA. While most courts have held that Section 230 grants interactive computer services immunity, some courts have carved exceptions to the Act. If a provider edits the content that materially alters its meaning of a statement, and the new statement is defamatory, then the immunity is waived by the provider. Second, if the website creates or develops illegal activity then the immunity is waived. Third, failing to comply with promises to remove material may waive liability. You might also lose the protection of Section 230 if you promise to remove content and then fail to do so. The 9th Circuit found in Barnes v. Yahoo!, Inc., that Section 230 did not shield a site from a promissory estoppel claim.
If the immunity is waived, a plaintiff may sue based on a negligence theory. The elements for a negligence action are:
• Duty to the Defendant by the Plaintiff
• Injury to the Defendant
• The Defendant caused the harm to the Plaintiff
• There was harm or damage to the Defendant by the Plaintiff
The damages range for negligence actions. Common collectible damages are:
• Special damages – quantifiable dollar losses suffered from the date of defendant’s negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one’s car.
• General damages – these are damages that are not quantified in monetary terms (e.g., there is no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.
• Punitive damages – Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant’s conduct was more than ordinary negligence (i.e., wanton and willful or reckless).
What are Defenses to a Claim under Section 230 of the CDA?
The main defense is that the website was a provider of the information. If the website was merely a passive provider then there is no liability for the defendant in a civil action.
The law concerning the CDA is complex. If you believe you are a victim of a violation of the CDA then contact the experienced attorneys at Meyers Roman Friedberg & Lewis, LPA to evaluate your case. Call today to find out more information at (216) 831-0042.