Since the signing of the Constitution, free speech and free press have been cornerstones of the freedoms provided to citizens in the United States. However, free speech and free press have never been absolute. For example, defamation laws allow a person to be held accountable for printing untrue and harmful statements about another, known as libel. Thus, it has been long been recognized that one who prints a defamatory statement about another can be held legally responsible for his or her actions.
However, the advent of the internet has created a host of fresh ways to view such long-standing laws. Consider a website that allows third parties to post statements for the entire world to read. Should the website operator be held liable for an anonymous posting by a third party about a particular person? Under common law, for example, a publisher of a newspaper or magazine can be held liable for publishing a defamatory statement made by another, even if anonymous. Should the same rules apply to an operator or host of an open forum, message board or blog on a website?
These were pertinent issues on the minds of legislators in the mid-1990’s when the internet boom was in its heyday. In order to confront these issues, Congress passed the Communications Decency Act (“CDA”), which, inter alia, allows broad immunity to website owners and operators for postings made on their sites by third parties.
Under Section 230 of the CDA, “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.” 47 U.S.C. § 230(c)(1). “Interactive computer service” means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet. 47 U.S.C. § 230(f)(2). “Information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. § 230(f)(3).
One of the most important and oft-cited opinions regarding Section 230 immunity is the Fourth Circuit’s 1997 opinion in Zeran v. America Online, Inc. 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998). In Zeran, the plaintiff sued American Online (“AOL”) based on its failure to remove a third party’s alleged defamatory posting on AOL’s website. Id. at 330. The plaintiff claimed AOL failed to remove the posting and allowed the third party to post repeatedly, even after AOL had been made aware of their falsity. Id. The court began its opinion by noting that the plain language of Section 230 of the CDA creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Id. In passing the CDA, the court continued, Congress recognized the threat that tort-based lawsuits pose to freedom of speech. Id. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Id. Section 230 was enacted, in part, to maintain the robust nature of Internet communications, and, accordingly, to keep government interference in the medium to a minimum. Id. In specific statutory findings, Congress recognized the Internet and interactive computer services as offering a “forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad of avenues for intellectual activity.” Id. (quoting 47 U.S.C. § 230(a)(3)). Obviously this does not mean that the original culpable party who posts a defamatory message can escape accountability; rather, Congress made a policy choice not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages. Id. at 330-31. In conclusion, the court found that AOL fell squarely within the CDA and was protected by Section 230’s immunity; therefore, it dismissed the plaintiff’s claims against AOL in their entirety. Id. at 332.
Since Zeran, “courts have treated Section 230 immunity as quite robust, adopting a relatively expansive definition of ‘interactive computer service’ and a relatively restrictive definition of ‘information content provider.’” Carafano v. Metrosplash.com. Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). Under Section 230, therefore, so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process. Carafano, 339 F.3d at 1124. And, although the U.S. Supreme Court has not yet opined on the subject, a vast majority of the U.S. Circuit Courts of Appeals – including the Fifth Circuit, in which the State of Texas sits – have followed the Fourth Circuit’s lead and granted broad immunity to interactive computer services under the CDA. See Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2nd Cir. 2015); Green v. America Online, 318 F.3d 465, 470 (3rd Cir.), cert. denied, 540 U.S. 877 (2003); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008); Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 417 (6th Cir. 2014); Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 672 (7th Cir. 2008); Johnson v. Arden, 614 F.3d 785, 792 (8th Cir. 2010); Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir.), cert. denied, 128 S.Ct. 709 (2007); Ben Ezra, Weinstein and Company, Inc. v. America Online, Inc., 206 F.3d 980, 986 (10th Cir.), cert. denied, 531 U.S. 824 (2000); Dowbenko v. Google Inc., 582 F. App’x 801, 805 (11th Cir. 2014); Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir.), cert. denied, 135 S. Ct. 680 (2014).
In terms of what constitutes an ‘interactive computer service,’ courts have had no problem finding that commonly-used interactive online forums or message boards on websites such as GoDaddy.com, Facebook.com, Lycos.com, AOL.com, MySpace.com, Yahoo.com, Google.com and Amazon.com qualify for protection under the CDA.
However, individuals who have suffered the brunt of defamatory or other wrongful statements posted on the internet are not entirely without redress. Specifically, Section 230 does not immunize an interactive computer service if it also functions as an information content provider for the portion of the statement or publication at issue. The critical issue is whether the website acted as an information content provider with respect to the information that the wronged party claims is false. So if the interactive computer service personally publishes portions of the alleged wrongful statements at issue – as opposed to merely providing a forum where third parties published them – then the interactive computer service will not enjoy CDA immunity.
Moreover, the actual third party “speaker” can always be held responsible for his or her wrongful statements posted online. And, in the event the “speaker” is anonymous, there are ways in which a harmed person can obtain the identity of the speaker from the interactive computer service so that he or she can seek legal recourse against the speaker directly.
© Eric C. Wood, 2016