A funny thing happened on the way to censoring the Internet – ISPs were given immunity from liability related to third party content. Senator Exon, in 1996, set out on his crusade to stop the barbarians at the gate of the Internet. He successfully introduced the Communications Decency Act which attempted to criminalise offensive content. What he ended up doing was protecting ISPs and users from certain third party liability.
To understand what Congress was up to, you have to step back a few years to a lawsuit called Stratton Oakmont v. Prodigy. Stratton Oakmont was a financial institution that, at the time, was reportedly experiencing a degree of difficulty. One of the difficulties was that someone in a Prodigy chat room had posted some material allegedly defamatory to Stratton Oakmont’s good name.
There were two problems. First, the poster of the material could not be found. Second, Prodigy was engaged in the practice of monitoring and filtering the chat rooms for material that was offensive to children. It was part of their sales pitch that their services were kid friendly.
Stratton Oakmont, feeling defamed and seeking damages, filed a lawsuit. Of course, they could not sue the anonymous poster, so they sued the next best thing; they sued Prodigy. Prodigy’s defense was elegant – Prodigy said “get outta here – were just an ISP – we do not have any control over what is posted to our system nor is it technically feasible for us to exert control.” But Stratton Oakmont argued back that Prodigy was not merely an online service; Prodigy had become a publisher. By filtering the chat rooms for content offensive to children, Prodigy had exercised editorial control over what would and would not be published, and therefore had the liability of a publisher. And if a publisher publishes defamatory remarks, that publisher can be liable. [Donato]
The Court bought it. Congress did not. Congress was appalled by the thought that - here Sen. Exon was telling us about this threat to the youth of American, and here Prodigy was acting the good citizen and fighting the filth – and Prodigy ends up getting slammed for something completely unrelated.
CDA Score Card: If you are keeping a score card, this is where all these situations have ended up. The Stratton Oakmont decision was appealed by Prodigy. Stratton Oakmont then thought it might be a good idea to settle, and did, relieving Prodigy of all liability. [NYTimes] The Communications Decency Act, at least those portions of the act criminalizing filth on the Internet, was declared unconstitutional by unanimous Supreme Court. And the Good Samaritan Defenses are still standing and remain good law.
Rule: Congress included in the Communications Decency Act the Good Samaritan defenses. These provisions state that ISPs are not publishers of third party content and cannot be held liable as publishers for this content (aka intermediary liability). Furthermore, ISPs can not be found to be liable under any law for actions taken to protect children from filth.
According to the Act:
47 U.S.C. § 230
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
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.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of –
(A) Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
(B) Any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph ([A]).
(d) Obligations of interactive computer service
(e) Effect on other laws
(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.
(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4) No effect on communications privacy law
Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
Purpose: Congress was directly reacting against the situation where an ISP was making decisions in a chat room about what could and could not be posted. Even where the service provider takes an active role, much like a publisher, it shall not be held liable as a publisher. Liability shall rest solely on the actual content producers and enforcement shall be emphasized.
Hare v. Richie, Dist. Court, D. Maryland 2012: "In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn`t edit or delete." Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1165 (9th Cir. 2008) (en banc). Thus, "`Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.'" Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003) (quoting Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998)). As the Fourth Circuit explained in its touchstone decision in Zeran v. America Online, Inc., supra, 129 F.3d at 330: "§ 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred." It is "immaterial whether this decision comes in the form of deciding what to publish in the first place or what to remove among the published material." Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 n.8 (9th Cir. 2009). Moreover, "an editor's minor changes to the spelling, grammar, and length of third-party content do not strip him of section 230 immunity." Fair Housing Council, 521 F.3d at 1170.
Good faith: 230(c)(2)(A) has a good faith requirement; 230(c)(2)(B) has no good faith requirement. [Zango slip 7]
Who is protected? It's not just the ISPs that are protected. An "interactive computer service" has been interpreted broadly, [Batzel p 1030] [Zango (230 protects malware filter as an "access software provider" 230(f)(4)(a))];
- users of the service are protected. This has taken on renewed importance in the age of Web2.0, where authors are quoting and commenting on content.
- Search Engines, [Rosetta Stone (EDVA 2010)],
- website operators; Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); see Nemet Chevrolet, 591 F.3d at 255 (defendant website operator was "an interactive computer service provider under the CDA."); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (undisputed that message board website operator was a provider of interactive computer services).
- Bloggers [DiMeo],
- owners of chat rooms [Green],
- Online Messaging Board; FTC v. Accusearch, Inc., 570 F.3d 1187, 1195 (10th Cir. 2009).
- review sites [Reit NY Supt Ct 2010 (Yelp)]
- moderators of discussion groups [Barrett]
- An employer providing network services to employees. [Lansing App Ct Ill 2012] 47 U.S.C. § 230(f)(2) (2000). Delfino v. Agilent Technologies, Inc., 52 Cal. Rptr. 3d 376, 389-90 (Cal. Ct. App. 2007) (corporate employer that gave its employees Internet access was an ICS provider); Kathleen R. v. City of Livermore, 104 Cal. Rptr. 2d 772, 777 (Cal. Ct. App. 2001) (library providing Internet access to the public by use of computers qualified as an ICS provider or user)
An interactive computer service can lose its immunity where it also acts as an information content provider. See FTC v. Accusearch, 570 F.3d 1187, 1197 (10th Cir. 2009) ("[A]n interactive computer service that is also an information content provider of certain content is not immune from liability arising from publication of that content." (quoting Fair Hous. Council v. Roommates.com, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc))).
230(c)(2)(B) [Zango slip 6 (defendant malware detecting company immune where it identifies certain programs as potentially malware)]