Intermediary Protection for Third Party Content

this page is in the process of being revised

The Good Samaritan Defenses have been tested in court and have proved to be quiet effective. The Courts have concluded that Congress knew what it was doing and meant to protect ISPs from third party civil liability. Even where the service provider has some type of relationship with the content provider, the service provider was protected. As long as an ISP is not the content producer, Sen. Exon’s Communications Decency Act shields them from liability.

In Blumenthal vs. Matt Drudge and AOL., the Judge quoted Chief Judge Wilkinson who stated:

The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and, accordingly, to keep government interference in the medium to a minimum.

As long as the content is from a third part, the interactive computer service is generally not liable. Blumenthal vs. Matt Drudge and AOL.

The act of screening, monitoring, or deleting content does not transform a service provider into a publisher and does not make it liable. [Green] Decisions by a service provider to publish, withdraw, postpone, or alter content will not give rise to liablity by the provider.Ben Ezra, Weinstein, and Co., Inc. v. AOL (Sec. 230 clearly "forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions."); Zeran v America Online, Inc., 129 F3d 327, 330 [4th Cir 1997], cert denied 524 US 9.37 [1998]; (Shiamili v. Real Estate Group of New York, inc., 68 AD3d 581 [1st dept, 2009]

Even where the service provider also acts as a content provider - even where the service providers comments on the third party content in question - as long as the service provider did not provide the content in question, the service provider is protected. [Donato slip at 20]

The Good Samaritan Defense has protected ISPs in a number of other cases as well.

• John Does v. Franco Productions: The Court found that PSINet and GTE were not liable where plaintiffs "were intercollegiate athletes who, without their knowledge or consent, were videotaped by hidden cameras in restrooms, locker rooms, or showers." Video tapes were then sold via websites hosted by GTE and PSINet.
• Zeran v. AOL: The Court found AOL not liable where, after the Oklahoma bombing, an anonymous poster announced in an AOL chat room the sale of t-shirts with highly offensive comments about the bombing on them, and then provided Zeran's name and phone number as the seller.
• Jane Doe v. AOL and Richard Lee Russell: The Court held that AOL could not be liable where Russell advertised in an AOL chat room the sale of child pornography.
• Gentry v. Ebay:The Court held that Ebay was not liable where third parties sold fake sports memorabilia through the service, providing description of goods on Ebay and selecting classification on site; the court found that Sec. 230 preempted state consumer causes of action.
• Schneider v. Amazon.com, Inc.: The Court held that Amazon.com was immune for liability where third parties made allegedly false statements about plaintiff in book review posted on website
• Carafano, (9th Cir. 2003) ("[S]o long as a third party willingly provides the essential published content, the interactive provider receives full immunity regardless of the specific editing or selection process.")
• Rosetta Stone Ltd (EDVA 2010) ("The user's decision to click on a Sponsored Link-the act that triggers the third party advertiser's payment to Google-is in fact driven by content provided by the advertiser. Rosetta Stone acknowledges that third party advertisers are the ones who select the keyword terms and create the content for the Sponsored Links appearing on Google's search results page. As a provider of online advertising space, Google simply assists third party advertisers in refining their selected keyword terms, which in turn trigger the appropriate Sponsored Links. By making available keyword tools and providing advertisers the ability to refine their keyword term selection, Google does not create the Sponsored Link contents but merely exercises editorial discretion.")

The Good Samaritan defenses covers a broad range of situations and services. ISPs are immune from liability in those situations where it is acting as a service provider and third party content traverses its system. Reviewing the legal history, this covers chat rooms, webpages, and proprietary content delivery such as on the AOL network. Logically, the defenses could also cover e-mail, IRC, USENET, web based chat, e-mail discussion groups, FTP, streaming media, telephony, and other application where the ISP provides network services but is not engaged in the content production. In addition, as has been seen, the ISP can be actively engaged in the content delivery. AOL had a contractual relationship with content creators and had certain levels of publisher rights to post or remove the content. A breached promise to remove content does not remove the immunity. [Barnes] [Schneider] As long as AOL did not produce the content, it could not be held to be liable.