Section 230 Defense to Defamation

Bloggers, forum moderators, and internet site providers are likely familiar with the Communications Decency Act (CDA) of 1996. They should also be aware of a powerful defense against defamation liability tucked within the CDA: Section 230.

The irony is that the CDA initially was passed to enhance the ability of internet service providers to monitor or delete user-created content without being held liable as publishers of that content. In other words, it was passed as a means to regulate and suppress speech but Section 230 has become a powerful bulwark for free speech for internet intermediaries. Ultimately, many aspects of the CDA were ultimately struck down by the Supreme Court as unconstitutional restrictions on free speech but Section 230 survived.

Section 230 provides that "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 other words, Section 230 protects online intermediaries that host or republish speech from a range of laws that might otherwise be used to hold them legally responsible for what others say and do.

Importantly, Section 230 preempts any state laws to the contrary: "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Plaintiffs have often argued that Section 230 should be limited to only "traditional" internet service providers (e.g. Comcast), but federal courts have repeatedly rejected this argument instead finding that Section 230 extends to many diverse entities constituting "interactive computer service providers.”

Section 230 has played a crucial role in the expansion of the internet and the proliferation of content. The protections for intermediaries provided by Section 230 have allowed YouTube and Vimeo users to upload videos. Without Section 230 it is unlikely that Amazon and Yelp would permit users to leave user reviews due to fear of being held liable for what those users would write. But the protection offered by Section 230 allows Craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of internet users without being bankrupted by liability for user-posted content. Without the protection offered by Section 230, free speech would be curbed as many internet intermediaries would not host any user content to avoid liability for their users' actions. Or alternatively, they would actively and aggressively censor what users said online.

Section 230 protects interactive service providers from liability for linking to content without comment. Likewise, it protects providers who edit or delete content that the provider considers “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” so long as the provider acts “in good faith.” Courts have held that Section 230 shields providers that edit or delete content as long as the provider does not change the meaning of the content. If the provider edits content that changes the meaning so that the content becomes defamatory, the provider loses the protection of Section 230. In such instances, the provider will be considered the publisher of the new, defamatory content. In short, Section 230 only protects actions taken in good faith.

It is important to be aware that Section 230 protects interactive computer service providers from more than defamation. It has been asserted as a defense to claims of intentional infliction of emotional distress, negligent misrepresentation, tortious interference with business expectancy, breach of contract, unfair competition, and even civil rights violations. Section 230 has its limitations, however, and does not protect intermediaries from claims asserting violations of federal criminal law, intellectual property law, or electronic communications privacy law.

With offices conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated and settled defamation, trade libel, internet defamation, and cyber smearcases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call on our toll-free number at (833) 306-4933 or locally at (630) 333-0333.

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