Immunity for reader comments under Section 230 of the Communications Decency Act

The enactment fifteen years ago of a seminal piece of federal legislation intended to protect children from harmful material on the Internet has provided online publishers broad protection from claims based on speech posted by third parties.

The provisions of the Communications Decency Act of 1996 that ultimately became the immunity-granting Section 230 were a legislative attempt to encourage private efforts to address Internet decency by protecting online service providers from liability when they take action to “restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, exceedingly violent, harassing, or otherwise objectionable.”     

The measure was also a response to Internet publishers’ growing complaints about the liability they faced for information posted by third-party readers. Accordingly, the statute explicitly states 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.”

While these third-party content providers are personally liable for claims arising from statements they publish online, that liability is not imputed to interactive computer services that act as intermediaries that facilitate the publication or distribution of speech online.

This means that if you allow reader comments on your web site, host guest bloggers or citizen journalists or otherwise accept user-generated content, you are generally not responsible for certain claims, including defamation, stemming from that content, provided it is submitted by a third party.

The protection extends to interactive computer services of all types, including blogs, forums and listservs, and allows providers who edit content in such a way that the meaning of the original statements is not substantially altered to retain their immunity. Because of the statutory provision empowering Internet service providers to edit out offensive material, potential liability against them arises only in those cases where they add their own commentary to user-created material. Unlike traditional editorial functions such as deciding whether to publish a particular statement or editing content for accuracy or tastefulness, activities involving web site publishers' insertion of their own material into content provided by a third-party user may extend beyond basic functions immunized by Section 230 and thus fall outside its protections.

The question of how much editorial control is too much editorial control often presents difficulties for publishers of interactive computer services. Many of the cases addressing Section 230 immunity involve highly specific facts, the slightest alteration of which could produce an entirely different outcome.

For example, a federal appellate court in California held in a 2008 case that generated a fair amount of public attention, Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, that the roommate-matching web site Roommates.com was protected from liability for comments posted by its users when it provided open fields for their “additional comments.” The site lost Section 230 immunity, however, when it provided “drop-down” menus with answers for users’ responses.

Likewise, an online publisher is immune from liability arising from the republication of previously posted or e-mailed third-party content if the provider of that content expected it to be posted online. Specifically, a museum administrator who selected, edited and then published on the museum's listserv and web site e-mails he had personally received was immune under Section 230 for liability over the disputed communication because it was provided electronically. Section 230 immunity would not apply, however, if the exact same information were published in a handwritten letter because the content provider in that scenario would likely have no expectation that the communication would be published online, a federal appeals court held in Batzel v. Smith in 2003. 

Most recently, New York's highest court held by a slim margin that Section 230 shielded from defamation liability a real estate company, employees of which operated a blog chronicling New York City's housing industry. According to the lawsuit, one of the blog’s administrators, an employee of the company, took a comment that included allegations that the plaintiff, a competitor, was racist and anti-Semitic and turned it into a stand-alone blog post. The blogger then added a headline and photo of Jesus Christ with the plaintiff’s face superimposed on the image along with a caption describing him as "King of the Token Jews,” according to his suit. At one point, the employee-blogger anonymously logged into the largely critical comments generated by the posted image and sought a response from another poster who claimed to have specific details about the plaintiff’s financial and personal troubles.

The four-judge majority in Shiamili v.The Real Estate Group of New York, Inc. ruled that the defendant-bloggers merely hosted defamatory material on their site. However, the three dissenting judges argued that the addition of material to defamatory posts and attempts to elicit greater discussion on the issue actually contributed to the defamation, thereby placing the defendants outside the scope of Section 230 immunity.

In addition, judicial confusion and misunderstanding as to how Section 230 immunity operates have resulted in haphazard analyses of the legal issues and reluctance to extend immunity to online statements that would be unprotected “in the physical world,” simply because they were published in the electronic one instead. “The Communications Decency Act was not meant to create a lawless no-man’s-land on the Internet,” the Roommates.com court wrote.  

According to a comprehensive study conducted by an attorney at the Berkman Center for Internet & Society at Harvard Law School, 60 percent of the nearly 185 judicial decisions involving application of Section 230 between its enactment in February 1996 and late September 2009 found that its immunity precluded liability against an online content provider. Although Section 230 protected more than half of the Internet publishers who claimed it as a defense, this figure indicates that immunity under Section 230, though explicitly set forth in straightforward, simple language, is hardly a foregone conclusion.

Nonetheless, courts have held that publishers of web sites and other interactive computer services are generally immunized for certain specific activities, discussed in some detail by the Citizen Media Law Project.   

The scope of immunity for other online editorial activities is largely unanalyzed by courts, and the issues may require legal resolution in the near future. These actions include the creation of “mixed content,” or content jointly authored by employees of the provider and independent third parties, and the publisher’s direction or establishment of standards for the publication of third-party content, including information submitted by users of corporate social networking sites or guest bloggers and citizen journalists.