Today nearly all businesses have some kind of online presence. As a result, they may run into trouble with their users. Usually, these businesses will have a “terms of service” agreement that provides a contractual basis to revoke/block/discipline the user's account. And often that might be enough to combat the problem. However, there are times when it's not so much a user's bad conduct towards the business that causes legal headache, as it is the user's conduct towards other users that does so.
In that case, Section 230 of the Communications Decency Act ("Section 230") is often business’ best friend. Section 230 is generally a liability shield for businesses ensnared in conflicts between users, but there are exceptions and qualifications. The following attempts to provide a basic breakdown for reference.
Section 230 in a Nutshell:
- Section 230 provides “interactive online services” of nearly all stripes (i.e., websites, blogs, forums, social networking platforms), a robust shield from certain types of legal liability that arises as a result of conduct on the part of or content created by users.
- Broad in scope, the shield has been applied to defamation and privacy causes of action, in addition to negligence and other tort claims.
- Section 230 was specifically enacted to provide the online operation the latitude to edit potentially harmful or offensive user content, provided the extent of editing is within certain parameters (such editing is often authorized by many terms of service agreements.)
- Section 230 is not to be confused with the Digital Millennium Copyright Act (DMCA) safe harbor rules, the latter of which applies to copyright claims.
What is the Communications Decency Act?
A very forward looking Congress passed the Communications Decency Act in 1996. And the relevant portion of it that survives simply provides “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.” Section 230 further provides that “[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.”
What Kind of Online Operations are Shielded by Section 230?
Simply an "interactive computer service” (i.e., the party that qualifies for protection) is a broad reference to nearly the full gamut of online operations. This is evident in Section 230’s definition which states, an "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.” The courts have interpreted this to afford blogs, forums, and even listservs, immunity under Section 230. This creates a major distinction in favor of online operations versus their print and traditional media counterparts.
What Kind of Claims are Covered by Section 230?
Section 230 is typically used in the defamation context (i.e., one user bad mouths another). In the typical scenario, the plaintiff asserts it has been defamed by another user and ends up suing the user author AND the website playing host to the purportedly offensive material. Fortunately for such operations, the judiciary has been near universal in its precluding such claims due to Section 230.
However, Section 230 has been applied in other contexts as well.
Consider one of the most famous cases that illustrates this fact. In Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007), MySpace was faced with a claim of negligence in connection with its failure to implement age verification procedures that the plaintiff argued resulted in a fourteen-year old being accosted by a sexual predator. There the court, unequivocally granted MySpace full immunity under the auspices of Section 230.
Major Exceptions: If the online business itself authors content that is the basis of a lawsuit, Section 230 will likely not apply in that instance. Really it is designed to insulate against the actions of users. Also, Section 230 does not bar recovery against claims that sound in criminal law and intellectual property claims (e.g., trademark, copyright).