Communication Decency Act Overview (“CDA”) and Internet Liability against a social media platform.  Need legal representation with a CDA issue?  Call us at (877) 276-5084.

Introduction

A website like Youtube, Reddit, Twitter, LinkedIn and Facebook are bound to wind up with defamatory comments posted on its websites or other content that may violate various state and federal laws.  But does that automatically make the internet site legally liable for things like defamation, revenge porn, the posting of photos or images that violate the sex trafficking laws under 18 USC 1581 and other laws.  In order to promote free speech, and communications by and between the public, certain protections were required to be put in place, for one main reason, to protect the growth of the internet.  The Communications Deceny Act (CDA) provides strong and rather broad protections that prevent Plaintiffs from holding internet social media platforms for being held liable for the unlawful acts of a third party.  This blog should give you a good overview.

The Communications Decency Act ("CDA Section 230")

The Communications Decency Act (“CDA”) provides certain immunities under section 230 that can be raised as an affirmative defense when an online site is sued for the actions of a third party on its site

The AOL case was a good case that explained the purpose of the CDA:

“Because § 230 was successfully advanced by AOL in the district court as a defense to Zeran's claims, we shall briefly examine its operation here.

Zeran seeks to hold AOL liable for defamatory speech initiated by a third party. He argued to the district court that once he notified AOL of the unidentified third party's hoax, AOL had a duty to remove the defamatory posting promptly, to notify its subscribers of the message's false nature, and to effectively screen future defamatory material.

Section 230 entered this litigation as an affirmative defense pled by AOL.

The company claimed that Congress immunized interactive computer service providers from claims based on information posted by a third party.

The case further noted: “The relevant portion of § 230 states:

“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). 

By 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.

Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role.

Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred. The Court explained the purpose for the immunity: “The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.

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. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

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 avenues for intellectual activity.”  Id. § 230(a)(3).

It also found that the Internet and interactive computer services “have flourished, to the benefit of all Americans,  with a minimum of government regulation.”  Id. § 230(a)(4) (emphasis added). Congress further stated that it is “the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services,  unfettered by Federal or State regulation.”

The original defamer can still be held liable as the Court recognized: “None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”  Id. § 230(b)(5).

Congress made a policy choice, however, 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. Congress' purpose in providing the § 230 immunity was thus evident. Interactive computer services have millions of users.  See  Reno v. ACLU (noting that at time of district court trial, “commercial online services had almost 12 million individual subscribers”).

The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems.

Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. The Court discussed other important considerations: “Another important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services. In this respect, § 230 responded to a New York state court decision,  Stratton Oakmont, Inc. v. Prodigy Servs. Co., (N.Y.Sup.Ct. May 24, 1995).

There, the plaintiffs sued Prodigy—an interactive computer service like AOL—for defamatory comments made by an unidentified party on one of Prodigy's bulletin boards. The court held Prodigy to the strict liability standard normally applied to original publishers of defamatory statements, rejecting Prodigy's claims that it should be held only to the lower “knowledge” standard usually reserved for distributors.

The court reasoned that Prodigy acted more like an original publisher than a distributor both because it advertised its practice of controlling content on its service and because it actively screened and edited messages posted on its bulletin boards.

“Congress enacted § 230 to remove the disincentives to self-regulation created by the Stratton Oakmont decision. Under that court's holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher.

Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230's broad immunity “to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material.” 47 U.S.C. § 230(b)(4).

In line with this purpose, § 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.” See Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997)"

Text of 47 U.S.C. 230

47 U.S.C. § 230 - Protection for private blocking and screening of offensive material

(a) Findings

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

(b) Policy
It is the policy of the United States—
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

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.

(2) Civil liability  

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be  obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to  information content providers or others the technical means to restrict access to material described in paragraph (1).

(d) Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors.

(e) Effect on other laws

(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.

(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

(4) No effect on communications privacy law
Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.

Communications Decency Act Definitions

(f) Definitions
As used in this section:

(1) Internet
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

(2) Interactive computer service
The term “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 and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider
The term “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.

(4) Access software provider

The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

This section is a key legal foundation for the broad immunity provided to online platforms for content posted by third parties, often referred to as the "safe harbor" provisions of the CDA. However, exceptions and limitations apply, especially in cases involving federal criminal law, intellectual property, and sex trafficking claims under laws like the TVPRA.

Types of Disputes that may arise under section 230

Section 230 of the Communications Decency Act (CDA) is a critical law in the United States that provides immunity to online platforms from liability for user-generated content. However, it has been the subject of various legal disputes in federal courts. Here are ten common types of legal disputes involving Section 230, along with case citations and brief summaries.  Note, cases can be appealed, and settled, so this is general information only and may not be accurate.

1. Defamation Claims
   Case: Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)
   Summary: This landmark case established that online service providers are not liable for defamatory statements made by users on their platforms. The court held that Section 230 protects providers from being treated as the publisher or speaker of user-generated content.

2. Intellectual Property Claims
   Case: Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007)
   Summary: The court held that Section 230 does not protect service providers from liability for intellectual property claims. However, it established that providers must still be treated differently from content creators regarding liability for third-party postings.

3. Sex Trafficking Claims
   Case: Doe v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016)
   Summary: The court found that Section 230 shielded Backpage from liability for claims of sex trafficking facilitated through its platform, as the claims were based on third-party content. This case was instrumental in prompting legislative changes leading to the FOSTA-SESTA Act, which limits Section 230 protections in cases of sex trafficking.

4. Harassment and Cyberstalking
   Case: Herrick v. Grindr LLC, 765 F. App'x 586 (2d Cir. 2019)
   Summary: The court ruled that Grindr, a dating app, was protected under Section 230 from liability for harms caused by harassment from third-party users, as the app was not the creator or developer of the harmful content.

5. False Advertising
   Case: Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019)
   Summary: This case involved claims that Facebook's algorithms helped promote terrorist content. The court ruled that Section 230 protected Facebook because the claims stemmed from third-party content, not the platform's own speech or actions.

6. Negligence Claims
   Case: Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008)
   Summary: In this case, the court found MySpace immune under Section 230 from negligence claims after a user was assaulted by another user met through the platform. The court held that the claims were based on third-party content and interactions.

7. Discrimination Claims
   Case: Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)
   Summary: This case addressed whether Section 230 protected Roommates.com from discrimination claims related to its user-provided questionnaires. The court ruled that Section 230 did not protect Roommates.com because it materially contributed to the alleged illegality of the content by designing the questionnaire.

8. Personal Injury Claims
   Case: Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021)
   Summary: In this case, the plaintiffs argued that Snapchat's Speed Filter feature encouraged reckless driving, leading to a fatal accident. The court held that Section 230 did not protect Snapchat because the claim was based on the design of the feature, not third-party content.

9. Product Liability
   Case: Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016)
   Summary: The court ruled that Section 230 did not protect a website operator from liability for failing to warn users about known dangers posed by third parties using the platform. The claim was not based on third-party content but on the platform's failure to warn.

10. Content Moderation and Deplatforming
    Case: Trump v. Twitter, Inc., 2023 WL 2717682 (N.D. Cal. 2023)
    Summary: This case involved former President Trump's lawsuit against Twitter for deplatforming him, arguing that the action violated his free speech rights. The court upheld Twitter's Section 230 protection, emphasizing the platform's right to moderate content as per its policies.

These cases illustrate the broad application of Section 230 in shielding online platforms from various legal claims, though there are exceptions where the courts found that the platforms' actions were not protected under this statute

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