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Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States. Section 230 is codified at 47 U.S.C.A. § 230 and is organized into 6 parts:
(a) Findings
(b) Policy
(c) Protection for "good samaritan" blocking and screening of offensive material"
(d) Obligations of interactive computer service
(e) Effect on other laws
(f) Definitions
(see Cornell University Law School's website to view Section 230 of the Communications Decency Act) Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others:

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 gain the benefit of the immunity:

1. The defendant must be a "provider or user" of an "interactive computer service."
2. The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

History

Section 230 of the Communications Decency Act was not part of the original Senate legislation, but was added in conference with the House of Representatives, where it had been separately introduced by Representatives Chris Cox (R-CA) and Ron Wyden (D-OR) as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. Unlike the more controversial anti-indecency provisions which were later ruled unconstitutional, this portion of the Act remains in force, and enhances free speech by making it unnecessary for ISPs and other service providers to unduly restrict customers' actions for fear of being found legally liable for customers' conduct. The act was passed in part in reaction to the 1995 decision in Stratton Oakmont, Inc. v. Prodigy Services Co., which suggested that service providers who assumed an editorial role with regard to customer content, thus became publishers, and legally responsible for libel and other torts committed by customers. This act was passed to specifically enhance service providers' ability to delete or otherwise monitor content without themselves becoming publishers. In Zeran v. America Online, Inc., the Court notes that "Congress enacted § 230 to remove the disincentives to self-regulation created by the Stratton Oakmont decision. Under that court's holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230's broad immunity "to remove disincentives for the development and utlization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." In addition, Zeran notes "the amount of information communicated via interactive computer services is...staggering. The specter of tort liability in an area of such prolific speech would have an obviously chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. 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. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."

Limits

Section 230's coverage is not complete: it excepts federal criminal liability and intellectual property law. 47 U.S.C. §§ 230(e)(1) (criminal) and (e)(2) (intellectual property); see also Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001) (no immunity for contributory liability for trademark infringement). In Perfect 10, Inc. v CCBill LLC, 481 F.3d 751 (9th Cir. Mar. 29, 2007; amended opinion issued May 31, 2007) the Court of Appeals ruled that the exception for intellectual property law applies only to federal intellectual property law, reversing a district court ruling that the exception applies to state right of publicity claims. Cf. Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion).

Controversy

Section 230 is controversial because several courts have interpreted it as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. See, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998), which held that Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” This rule effectively protects online entities, including user-generated content websites, that qualify as a "provider or user" of an "interactive computer service." However some criticize Section 230 for leaving victims with no hope of relief where the true tortfeasors cannot be identified or are judgment proof. For example, the plaintiff in Zeran was clearly defamed by an unidentified user of AOL's bulletin board, but was unable to bring suit against the original poster due to missing records. Since Section 230 barred Zeran from obtaining damages from AOL, he obtained no redress for the harms the messages caused, including death threats that required the involvement of the FBI.

Application

Courts in the United States have upheld Section 230 immunity in a variety of factual contexts and on numerous legal theories. Plaintiffs have successfully argued in a handful of cases that an "interactive computer service" was not entitled to Section 230 immunity because the person or entity in question was an "information content provider" with respect to the information at issue.

Defamatory information

• Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997)

Immunity was upheld against claims that AOL unreasonably delayed in removing defamatory messages posted by third party, failed to post retractions, and failed to screen for similar postings.

• Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998)

The court upheld AOL's immunity from liability for defamation. AOL's agreement with the contractor allowing AOL to modify or remove such content did not make AOL the "information content provider" because the content was created by an independent contractor. The Court noted that Congress made a policy choice by "providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others."

• Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003)

The court upheld immunity for an Internet dating service provider from liability stemming from third party's submission of false profile. The plaintiff claimed the false profile defamed her, but because the content was created by a third party, the website was immune, even though it had provided multiple choice selections to aid profile creation.

• Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)

Immunity was upheld for a website operator for distributing an email to a listserv where the plaintiff claimed the email was defamatory. Though there was a question as to whether the information provider intended to send the email to the listserv, the Court decided that for determining the liability of the service provider, "the focus should be not on the information provider's intentions or knowledge when transmitting content but, instead, on the service provider's or user's reasonable perception of those intentions or knowledge." The Court found immunity proper "under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other 'interactive computer service'."

• Green v. AOL, 318 F.3d 465 (3rd Cir. 2003)

The court upheld immunity for AOL against allegations of negligence. Green claimed AOL failed to adequately police its services and allowed third parties to defame him and inflict intentional emotional distress. The court rejected these arguments because holding AOL negligent in promulgating harmful content would be equivalent to holding AOL "liable for decisions relating to the monitoring, screening, and deletion of content from its network -- actions quintessentially related to a publisher's role."

• Barrett v. Rosenthal, 40 Cal. 4th 33 (2006)

Immunity was upheld for an individual internet user from liability for republication of defamatory statement on a listserv. The court found the defendant to be a "user of interactive computer services" and thus immune from liability for posting information passed to her by the author.

• MCW, Inc. v. badbusinessbureau.com, L.L.C. 2004 WL 833595, NO. CIV.A.3:02-CV-2727-G, (N.D. Tex. April 19, 2004).

The court rejected the defendant's motion to dismiss on the grounds of Section 230 immunity, ruling that the plaintiff's allegations that the defendants wrote disparaging report titles and headings, and themselves wrote disparaging editorial messages about the plaintiff, rendered them information content providers. The Web site, www.badbusinessbureau.com, allows users to upload "reports" containing complaints about businesses they have dealt with.

• Hy Cite Corp. v. badbusinessbureau.com, 418 F.Supp.2d 1142 (D. Ariz. 2005)

The court rejected immunity and found the defendant was an "information content provider" under Section 230 using much of the same reasoning as the MCW case.

False information

• Gentry v. eBay, Inc., 99 Cal.App.4th 816, 830 (2002)

Ebay's immunity was upheld for claims based on forged autograph sports items purchased on the auction site.

• Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000)

Immunity for AOL was upheld against liability for a user's posting of incorrect stock information.

• Goddard v. Google, Inc., C 08-2738 JF (PVT), 2008 WL 5245490, 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. Dec. 17, 2008)

Immunity upheld against claims of fraud and money laundering. Google was not responsible for misleading advertising created by third parties who bought space on Google's pages. The court found the creative pleading of money laundering did not cause the case to fall into the crime exception to Section 230 immunity.

Sexually explicit content and minors

• Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000)

The court upheld immunity against state claims of negligence based on "chat room marketing" of obscene photographs of minor by a third party.

• Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 692 (2001)

The California Court of Appeal upheld the immunity of a city from claims of waste of public funds, nuisance, premises liability, and denial of substantive due process. The plaintiff's child downloaded pornography from a public library's computers which did not restrict access to minors. The court found the library was not responsible for the content of the internet and explicitly found that section 230(c)(1) immunity covers governmental entities and taxpayer causes of action.

• Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. Feb. 13, 2007)

The court upheld immunity for a social networking site from negligence and gross negligence liability for failing to institute safety measures to protect minors and failure to institute policies relating to age verification. The Does' daughter had lied about her age and communicated over MySpace with a man who later sexually assaulted her. In the court's view, the Does' allegations, were "merely another way of claiming that MySpace was liable for publishing the communications."

Discriminatory housing ads

• Chicago Lawyers' Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008)

The court upheld immunity for Craigslist against Fair Housing Act claims based on discriminatory statements in postings on the classifieds website by third party users.

• Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,.

The Ninth Circuit Court of Appeals rejected immunity for the Roommates.com roommate matching service for claims brought under the federal Fair Housing Act and California housing discrimination laws. The court concluded that the manner in which the service elicited information from users concerning their roommate preferences (by having dropdowns specifying gender, presence of children, and sexual orientation), and the manner in which it utilized that information in generating roommate matches (by eliminating profiles that did not match user specifications), the matching service created or developed the information claimed to violate the FHA, and thus was responsible for it as an "information content provider." The court upheld immunity for the descriptions posted by users in the “Additional Comments” section because these were entirely created by users.

Threats

• Delfino v. Agilent Technologies, 145 Cal. App. 4th 790 (2006), cert denied, 128 S. Ct. 98 (2007).

A California Appellate Court unanimously upheld immunity from state tort claims arising from an employee's use of the employer's e-mail system to send threatening messages. The court concluded that an employer that provides Internet access to its employees qualifies as a "provider . . . of an interactive service."

Legislation in other countries

Legislation in other countries lacks the protections afforded by the Act.

Australia

In Dow Jones & Company Inc v Gutnick, the High Court of Australia treated defamatory material on a server outside Australia as having been published in Australia when it is downloaded or read by someone in Australia.

Gorton v Australian Broadcasting Commission & Anor (1973) 1 ACTR 6

Under the Defamation Act 2005 (NSW), s 32, a defence to defamation is that the defendant neither knew, nor ought reasonably to have known of the defamation, and the lack of knowledge was not due to the defendant's negligence.

New Zealand

Failing to investigate the material or to make inquiries of the user concerned may amount to negligence in this context: Jensen v Clark [1982] 2 NZLR 268.

France

In LICRA vs. Yahoo!, the High Court ordered Yahoo! to take affirmative steps to filter out Nazi memorabilia from its auction site. Yahoo!, Inc. and its then president Timothy Koogle were also criminally charged, but acquitted.

Germany

In 1997, Felix Somm, the former managing director for CompuServe Germany, was charged with violating German child pornography laws because of the material CompuServe's network was carrying into Germany. He was convicted and sentenced to two years probation on May 28, 1998. He was cleared on appeal on November 17, 1999.

The Oberlandesgericht (OLG) Cologne, an appellate court, found that an online auctioneer does not have an active duty to check for counterfiet goods (Az 6 U 12/01).

In one example, the first-instance district court of Hamburg issued a temporary restraining order requiring message board operator Universal Boards to review all comments before they can be posted to prevent the publication of messages inciting others to download a harmful files. The court reasoned that "the publishing house must be held liable for spreading such material in the forum, regardless of whether it was aware of the content."

United Kingdom

The laws of libel and defamation will treat a disseminator of information as having "published" material posted by a user and the onus will then be on a defendant to prove that it did not know the publication was defamatory and was not negligent in failing to know: Goldsmith v Sperrings Ltd (1977) 2 All ER 566; Vizetelly v Mudie's Select Library Ltd (1900) 2 QB 170; Emmens v Pottle & Ors (1885) 16 QBD 354;

Sources

• 47 U.S.C.A. § 230

• Margaret Jane Radin et al., Internet Commerce: The Emerging Legal Framework 1091-1136 (2nd ed. 2006)

External links

• FCC text of the full act.
• Section 230
• Cybertelecom :: The Communications Decency Act
• Electronic Frontier Foundation FAQ on Section 230
• WikiNews: Craigslist sued for hosting discriminatory housing ads
• Fair Housing Lawsuit Against Craigslist.org Has Been Dismissed
• Wikimania 2006: Section 230: At the Gates between Liability for Harmful Speech and Wikipedia audio lecture.
• Delfino v. Agilent published opinion
• Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers Under Section 230 of the Communications Decency Act

WP:Hornbook -- a new WP:Law task force for the J.D. curriculum

Hi Boalt2761,

I'm asking Wikipedians who are interested in United States legal articles to take a look at WP:Hornbook, the new "JD curriculum task force".

Our mission is to assimilate into Wikipedia all the insights of an American law school education, by reducing hornbooks to footnotes.

• Each casebook will have a subpage.

• Over the course of a semester, each subpage will shift its focus to track the unfolding curriculum(s) for classes using that casebook around the country.
• It will also feature an extensive, hyperlinked "index" or "outline" to that casebook, pointing to pages, headers, or {{anchors}} in Wikipedia (example).
• Individual law schools can freely adapt our casebook outlines to the idiosyncratic curriculum devised by each individual professor.

• I'm encouraging law students around the country to create local chapters of the club I'm starting at my own law school, "Student WP:Hornbook Editors". Using WP:Hornbook as our headquarters, we're hoping to create a study group so inclusive that nobody will dare not join.

What you can do now:

1. Add WP:Hornbook to your watchlist, {{User Hornbook}} to your userpage, and ~~~~ to Wikipedia:Hornbook/participants.

2. If you're a law student,

• Email http://en.wikipedia.org/wiki/WP:Hornbook to your classmates, and tell them to do the same.
• Contact me directly via talk page or email about coordinating a chapter of "Student WP:Hornbook Editors" at your own school.

(You don't have to start the club, or even be involved in it; just help direct me to someone who might.)

3. Introduce yourself to me. Law editors on Wikipedia are a scarce commodity. Do knock on my talk page if there's an article you'd like help on.

Regards, Andrew Gradman ^talk/_WP:Hornbook 21:36, 31 July 2009 (UTC)