How broad is Web publisher immunity under (section) 230 of the Communications Decency Act of 1996?

• Author: Morley, Samuel J.

Over the past decade, more and more lawsuits have been filed against online publications, dispelling the myth that such information is not subject to a variety of legal actions. There are many reasons for the increased lawsuits--more powerful, interactive Web sites, more content, more money in the industry, and more plaintiff's lawyers following that growth and filing individual and class action lawsuits. The increase in lawsuits has raised the possibility of exposure to a number of legal claims and upped the stakes in publishing online material. This means, for better or worse, Web publishers (1)--including newspapers, magazines, and other traditional print publications with increasing digital readership, reporter blogs, and reader postings--must be up to date on their rights and responsibilities and potential liabilities.

Among the most important laws relating to online liability is [section] 230 of the Communications Decency Act (CDA), which offers powerful immunity (2) to online publishers who are entitled to its protection. Passed in 1996, [section] 230 was designed to protect Internet providers from liability for defamatory and other unlawful messages on their servers in an effort to nourish formation of the early Internet and open and robust information exchange. (3) The general idea is that immunity can be appropriate because while Internet providers share some similarities to edited print publications like newspapers, which are held accountable for third-party content, they also have attributes of common carriers like telephone companies that serve as passive conduits of third-party information and, as such, are not held responsible for what is said.

Section 230 has been interpreted to preempt inconsistent state law claims and block liability for not only defamation claims but also other state law claims, like infliction of emotional distress, negligence, public nuisance, civil theft, invasion of privacy, securities law violation, fraud, and cyberstalking. Thus, understanding how and when this federal immunity applies is crucial in gauging an online publisher's risk of liability for a variety of state law claims.

Since its passage, a substantial body of case law has evolved around the immunity provision that helps explain its application to the many factual situations facing interactive service providers and users. In addition, state courts--including the Florida Supreme Court--have weighed in with their own interpretation of [section] 230. (4) As the case law has evolved with many broad interpretations of [section] 230 immunity, it also appears based on a handful of recent cases that this may be changing in a few distinct areas. This has left providers of digital information, especially smaller operation bloggers and platforms, sometimes unaware or confused about their potential liability in presenting online material. So, too, plaintiffs and perhaps their attorneys, question their ability to bring a lawsuit over an objection-able posting.

This article provides a brief review of the landscape of [section] 230 immunity. It begins by discussing the background and current state of the law regarding immunity. It then summarizes some of the leading cases that illustrate situations where a Web publisher can most likely rely on immunity. Finally, the article addresses three areas where immunity can be lost or may be viewed critically, thus, requiring greater care on the part of online services seeking to avoid liability.

Background of [section] 230 Immunity

The CDA immunity for Web site providers stems from the following provision: "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." (5) The term "information content provider" is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet." (6) These provisions have generally been interpreted to give Web site publishers immunity from lawsuits based on objectionable content posted by third-party users. (7) The provisions are designed to "preclude courts from entertaining claims that would place a computer service provider in a publisher's role." (8) However, the Web site remains liable for content it "created or developed in whole or in part." (9)

It is important to recognize that a single Web site operator can be both a service provider passively displaying information and immune from liability, as well as a content provider potentially liable with respect to other content it creates or develops. (10)

Current Law: Immunity Interpreted Broadly

The immunity provision generally has been interpreted broadly, and most courts consider it a virtually complete prohibition on lawsuits against Web sites for disseminating third-party content. (11) Courts have extended immunity not just to the large Internet service providers like America Online (AOL) and eBay, but also to individual Web sites and electronic bulletin board operators and bloggers that post third-party information. (12) Courts reason that such broad immunity furthers the law's purpose to protect Web sites from liability from lawsuits that might otherwise arise from the millions of users posting on their sites, which they cannot reasonably screen. (13)

In keeping with this broad view of immunity, courts have usually narrowly construed the sort of [section] 203(f)(3) "creation or development" activities a provider must engage in for the content to be deemed its own and thereby capable of destroying its immunity. Immunity, for example, is not lost where a service provider merely exercises its editorial and self-regulatory functions regarding the third-party content. (14) Even when the provider has an active, aggressive role in making available content prepared by others, immunity will remain. (15) Keep in mind that in determining if the Web site has become an information content provider, the court is only interested in the Web site material or contribution that is connected to the objectionable posting at issue. (16)

Plaintiffs have attempted to limit immunity by arguing that Congress never intended [section] 230 to extend to Web sites they categorize as "knowing distributors" of the objectionable information, which they argue are distinct from immune publishers. Federal courts, however, have largely, if not uniformly, rejected this distinction. One of the earliest examples is the Fourth Circuit Court of Appeals in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), in which the court found distributors to be merely a subset of publishers and, therefore, similarly immune. The Florida Supreme Court several years ago in Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001), relied on Zeran's rationale regarding tort claims brought against AOL for allegedly distributing child pornography. Although the court adopted Zeran's view that immunity applied to distributors like AOL, it is interesting to note that a three-judge minority strongly disagreed, asserting that Zeran results in "carte blanche immunity for wrongful conduct plainly not intended by Congress." (17)

This broad statutory immunity does not apply without limitation: Congress attached several exceptions to immunity in [section] 230(e). One of these exceptions covers "intellectual property laws," which has been viewed broadly by some federal courts, (18) and arguably carves out immunity to allow for a right of publicity lawsuit against revenue generating Web sites for posting noncelebrity gossip. (19)

Situations in Which Immunity Has Been Applied

Since Zeran and Doe v. America Online, many other federal and state appellate courts have weighed in on [section] 230 and, for the most part, confirm the view of broad immunity. Some of these cases are cited below to illustrate Web activities a provider can undertake without undue risk of liability.

Hosting of Third-party Content--Simply hosting third-party content is clearly allowed. This includes providing links to third-party content, such as message board posts. (20)

Reposting of Third-party Content--Some Web site operators post statements or user profiles on other Web sites with "slight" modification in the form of teasers or advertisements. Courts have held that this reposting does not result in lost immunity because [section] 230 prohibits the operator from being treated as the publisher of the third-party content, even if the operator decides to post that content elsewhere. (21) Immunity "depends on the source of the information in the allegedly tortious statement [ i.e., the creator of the profile], not on the source of the statement itself." (22)

Providing Traditional Editorial Functions--As mentioned...