The Communications Decency Act, and web site operators immunity for their users writings

Date: Sat Apr 26 2014 Internet Law »»»» Online Community

Is an operator of a message board on the Internet liable for whatever the users of said message board say? What if you run a message board, and someone registers on the site and begins posting horrible statements about someone else. What liability does the message board operator have? What responsibility do they have?

There's clearly room for a big problem here. A statement about someone on the Internet is findable using search directories. The target of the bad statement might have trouble getting hired in the future (if their prospective employer yahoogles them) or a business might lose customers in a similar way. In general it's best if statements about others are accurate and truthful, but of course millennia of human history says people lie about each other all the time, they say nasty things about each other, sometimes to purposely egg on arguments, etc.

It doesn't make a lot of sense that a web site operator would be liable for their users statements. Would a bar owner be responsible for thieves who plot bank robberies while sitting in the bar? Is a supermarket who has a community bulletin board liable for the truth of all the notices posted there?

On the other hand publishers are liable for publishing accurate information. Newspapers and magazines are liable for truth in the articles they print. Is a community web site a publisher? Or is it a vehicle for others to use to communicate?

Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others. It is U.S. law so of course it only applies to American web sites and Americans. It's of course kinda tricky to consider international boundaries and the different ways various countries treat defamation.

Courts in the United States have upheld Section 230 immunity in a variety of factual contexts and on numerous legal theories, including posting defamatory information, private information, false information, pornographic information, and discriminatory housing ads.

Plaintiffs have successfully argued in a handful of cases that an "interactive computer service" was not entitled to Section 230 immunity because the person or entity in question was an "information content provider" with respect to the information at issue. The Wikipedia article describes situations where a service processes information provided by users to generate new data, rather than simply being a conduit.

The EFF has a good discussion based on reviews of cases: Bloggers' FAQ - Section 230 Protections .. It's focused on Bloggers and there are two angles to this. First, a blogging service is not liable for blogs posted by the bloggers using that service, because clearly the blogging service is simply a conduit for bloggers to blog. Second, a blogger who allows comments on their blog is not liable for the comments posted to the blog postings. The blogger is of course liable for the portion they write.

It's important then for the presentation to clearly demark who wrote what.

A question which arises with the instances where Section 230 does not apply. The court cases where Section 230 was not allowed involve cases where the web site operator massages the content provided by their users. This raises a question over what happens if or when the web site operator edits the comments posted by users.

Editing comments can be routinely done to help the web site function properly. Suppose a user posts a mangled link or an incorrectly performed image tag. It's helpful for the website operator to edit the post and fix the link or image tag. But what if by editing the comment the website operator changes the meaning of the comment? There's a big difference between "So and so is not a jerk" and "So and so is a jerk".

The Dozier Internet Law firm has articles with a different viewpoint...

Their point seems to be that Internet advice writings are incorrect, written by liberals, written by law professors who don't know how to practice law, only teach it, etc. They do discuss the court cases mentioned above where Section 230 was found to not give immunity in some cases, but they take that as a blanket undermining of Section 230's validity. However on the EFF and Wikipedia pages it's said those court cases apply to only to services which process their users comments, and further that the cases were returned to the courts for review. Curiously the Dozier site doesn't discuss this.. I wonder if it's because the Dozier Law firm needs to present a specific viewpoint to garner business for their firm?