Section 230 of the Communications Decency Act: the "good Samaritan" Law Which Grants Immunity to "bad Samaritans"

JurisdictionUnited States,Federal
Publication year2022
CitationVol. 73 No. 2

Section 230 of the Communications Decency Act: The "Good Samaritan" Law which Grants Immunity to "Bad Samaritans"

Josh Slovin

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Section 230 of the Communications Decency Act: The "Good Samaritan" Law which Grants Immunity to "Bad Samaritans"

Josh Slovin*


In 1989, the "world wide web" launched in the public domain, creating what we call today the "internet."1 However, the internet was slow to catch on. In 1996, there were only 20 million American users on the internet.2 As the adoption of the internet by Americans slowly increased so did the development of internet websites and internet services. The United States Congress quickly began to see the pitfalls of the internet unfolding before its own eyes.3 In effect, the internet created a new venue for the dissemination of defamatory and elicit content.4

Beginning in 1991, litigation commenced when individuals sought to hold internet website providers liable for content created or posted by third-parties.5 Courts seemingly struggled in assessing liability on the part of the internet website provider, which led to courts offering

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conflicting approaches and judgments.6 The spreading of false and elicit content online, in combination with contrasting court judgments, led Congress to pass the Communications Decency Act (CDA)7 as part of the Telecommunications Act of 19968 . Included within the CDA are several provisions now referred to as "Section 230," codified at 47 U.S.C. § 230,9 which grants immunity to providers of interactive computer services (ICSP) from liability as "publishers" with respect to third-party content appearing on their websites. While Congress envisioned § 230 as a way to promote the continued development of the Internet by giving "Good Samaritan" ICSPs the authority to self-regulate third-party content posted on its websites and immunity from any resulting liability, in effect "Bad Samaritan" ICSPs have also benefited from § 230's immunity.10 As such, courts have struggled to balance the legislative purpose of § 230 with the legislative text, which has often created differing and controversial judgments.11

With respect to the controversy surrounding § 230, this Comment focuses on the legislative history leading to § 230's enactment, the legislative text itself, and the differing interpretations of § 230 by the United States Court of Appeals for the Fourth and Ninth Circuits.

The Comment is organized as follows: Part II begins with a brief explanation of defamation at common law and its relation to common law "publisher" and "distributer" liability. Part II also addresses two significant, early internet liability cases in which the courts made differing interpretations and rulings with respect to assessing ICSP liability for allegedly defamatory third-party content posted on their respective websites. Part III discusses the legislative backdrop leading to § 230's enactment, along with a review of the legislative text of § 230. Part IV discusses and evaluates the interpretations of § 230(c)(1) adopted by various United States Federal Circuit Courts along with an analysis as to which Federal Circuit's interpretation best effectuates Congress's purpose for enacting § 230. Part V concludes by offering a proposed modification to § 230(c)(1) to conditionally limit its grant of

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immunity to ICSPs under specific situations in order to better achieve the legislative purpose and policies of § 230.


A. Common Law Defamation

Defamation is a communication that tends to damage the plaintiff's reputation, to diminish the respect, good will, confidence, or esteem in which the plaintiff is held, or to excite adverse or unpleasant feelings about the plaintiff.12

Under common law, to sustain a defamation claim, a plaintiff must demonstrate that the defendant published, either by spoken (slander) or written words (libel), defamatory material which concerned the plaintiff and was directed to a third person. Further, the plaintiff must prove that the statement was false, that the defendant was guilty of fault equivalent to negligence or something greater, and that the plaintiff suffered actual damages.13

First, the plaintiff must show that the defendant "published" the allegedly defamatory material. Publication means "'communication, by any method, to one or more persons who can understand the meaning.'"14 Interestingly, defamation law may allow for liability to be imposed on publishers and distributors, depending on their actions, who disseminate allegedly defamatory material. A publisher, like a newspaper publishing company, exercises "traditional editorial functions . . . such as deciding whether to publish, withdraw, postpone or alter content," while a distributor, like a newsstand, plays no role in the formatting or creating of the work and rather merely disseminates the content.15

Because of the difference in roles played by a publisher and distributor, courts have treated those who publish content different than those who distribute content. Traditionally, courts have been less willing to impose liability on distributors than publishers. At common law, publishers "can be held liable for defamatory statements contained in their works even absent proof that they had specific knowledge of the statement's inclusion," while "distributors are not liable 'in the absence

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of proof that they knew or had reason to know of the existence of defamatory matter contained in matter published.'"16

B. Publisher Liability versus Distributor Liability-Common Law

A publisher is a person or business who prints or broadcasts material themselves which has been submitted by others, like a book publisher, newspaper publisher, and broadcast stations.17 Under standard common law principles, a person who publishes a defamatory statement by another is held liable for such statement as if he or she had initially created it.18 Liability is further extended if another person reprints and sells a defamatory statement already published by another. That person would then become a publisher and subject to liability to the same extent as if the person had originally published the defamatory statement.19 Thus, a book publisher or a newspaper publisher can be held liable for anything that appears within its pages. The theory behind "publisher" liability is that a publisher has the knowledge, opportunity, and ability to exercise editorial control over the content of its publications.20

Distributors, such as bookstores, newsstands, and libraries, distribute copies that have been printed by others. Distributor liability is much more limited than that of a publisher, as distributors are generally not liable for the content of the material that they distribute. Moreover, a distributor, such as a bookseller, is under no duty to examine the various publications offered for sale to ascertain whether they contain any defamatory items, absent notice of the tortious content.21 The concern is that it would be impossible for distributors to read every publication, and ascertain the publications truth or falsity, prior to selling or distributing it, and that as a result, distributors would engage in excessive self-censorship.22

The key distinction at common law between a publisher and distributor is that a publisher inherently has knowledge of the content it is publishing, while a distributor does not. As a result, the law does not impose liability on distributors unless they have knowledge or

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reason to know that the information they are distributing is tortious or unlawful.23

C. The Rise of the Internet and the Blurring of the Distinction Between a "Publisher" and a "Distributor"

At common law, there was a clear distinction between a publisher and a distributor, and the subsequent intermediary liability imposed upon such actors. However, in the early 1990s, with the rise of the internet came "internet intermediaries," namely, websites containing third-party content, which blurred this distinction.

In 1991, the first internet intermediary was sued for defamation in the United States District Court for the Southern District of New York in Cubby, Inc. v. CompuServe Inc.,24 and unsurprisingly, the internet intermediary attempted to argue that it was a distributor and not a publisher of the content appearing on its website.25 In Cubby, Inc., the defendant, CompuServe was the owner and developer of an "electronic library" containing over 150 special interests forums, "comprised of electronic bulletin boards, interactive online conferences, and topical databases."26 The electronic library included a journalism forum, which CompuServe contracted out to Cameron Communication, Inc. (CCI), an entity independent of CompuServe, to "manage, review, create, delete, edit and otherwise control the [Journalism Forum's] contents."27 Included within the Journalism Forum was Rumorville USA, a daily newsletter which reported on broadcast journalism. Rumorville USA newsletters were created and uploaded by another entity and then approved by CCI.28

The plaintiffs owned "Skuttlebut," a computer database which electronically published and distributed news and gossip regarding the television and radio industries. Plaintiffs alleged that Rumorville USA had published false and defamatory statements relating to Skuttlebut and made it available on the journalism forum hosted by CompuServe. The plaintiffs asserted that CompuServe should be held liable as a publisher of the content developed by Rumorville USA because it made Rumorville USA available to its subscribers and thus "published" the material.29 The district court disagreed and found CompuServe to be a

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"distributor" of content posted on Rumorville USA.30 In doing so, the court concluded that CompuServe had the same minimal editorial control over the publication of Rumorville USA as does a library...

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