US Internet Law/Section 230
U.S. Federal law 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." 47 U.S.C. §230(c)(1), and 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." id. § 230(e)(3)).
Congress created this immunity in order to limit the impact on the Internet of federal or state regulation imposed either through statute or through the application of common law causes of action. 47 U.S.C. § 230(a)(4) (the Internet and other interactive computer services “have flourished, to the benefit of all Americans, with a minimum of government regulation”; id. § 230(b)(2) (“[i]t is the policy of the United States” to minimize Internet regulation).
As the U.S. Court of Appeals for the Fourth Circuit found in the seminal case interpreting Section 230, "[b]y its plain language, § 230 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" Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998).
Courts across the country have upheld Section 230 immunity and its policy of regulatory forbearance in a variety of factual contexts.
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing email sent to listserv);
- Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information);
- Blumenthal v. Drudge, 982 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for content of independent contractor’s news reports, despite agreement with contractor allowing AOL to modify or remove such content).
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (Internet dating service provider was entitled to Section 230 immunity from liability stemming from third party’s submission of false profile);
- Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) ("Doe") (§ 230 immunizes America Online (“AOL”) for negligence);
- Gentry v. eBAY, Inc., 99 Cal.App.4th at 830 (2002) ("Gentry") (eBay is entitled to § 230 immunity, which protects against liability under Civil Code § 1739.7).
- Kathleen R. v. City of Livermore, 87 Cal.App.4th 684 at 692 (2001) ("Kathleen") (library not liable for providing computers allowing access to pornography);
- Marczeski v. Law, 122 F.Supp.2d 315, 327 (D. Conn. 2000) (individual who created private “chat room” was ICS provider entitled to immunity);
- Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash.Ct.App. 2001) ("Schneider") (online bookseller providing forum for others to submit book reviews is “interactive computer service” provider (“ICS provider”));
Section 230 is not limited to defamation lawsuits, or even to tort actions. It extends to claims of negligence.
- See Doe above;
- See Schneider above (negligent misrepresentation and interference with business expectancy);
- It extends to state causes of action for violating a statute that forbids dealers in autographed sports items from misrepresenting those items as authentically autographed. See Gentry above.
- It extends to unfair competition laws. Stoner v. eBay, Inc., 2000 WL 1705637, (Cal.Super.2000) (unpublished) (claiming eBay violated Calif. Bus. & Prof. Code § 17200 for auctions of bootleg and other unauthorized ‘infringing’ sound recordings).
- It protects a library from being held liable for misuse of public funds, nuisance, and premises liability for providing computers allowing access to pornography. See Kathleen above
- It extends to contract claims.
- Jane Doe One v. Oliver, 755 A.2d 1000, 1003-1004 (Conn. Super. Ct. 2000) (applying § 230 to dismiss breach of contract action against AOL, as well claims such as negligence, breaching a mandated public policy, intentional nuisance, and emotional distress).
- Morrison v. America Online, Inc., 153 F.Supp.2d 930, 934 (N.D. Ind. 2001) (rejecting attempt to evade § 230 immunity by claiming to be third-party beneficiary of AOL’s member agreement with chat-room users);
Table of Contents · Preface · Introduction · Defamation · Defamation - General · Section 230 · Copyright · Copyright - General · Secondary Liability · Fair Use · DMCA · DMCA Safe Harbor · DMCA Anti-Circumvention · Trademark · Domain Names · Content Regulation · Online Anonymity · Communications Decency Act · Online Contracts · The Hold Harmless Clause in User Agreements · Clickwrap Agreements · UCITA · Privacy · ECPA · SCA ·