A Moron In A Hurry

Online Intermediary Liability and Defamation


Communications Decency Act of 1996: 47 USC 230 (via LII)

In large part, this is what’s important:

(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).

Note the definition for “interactive computer service”:

CDA(f)(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.

And the definition of “internet content provider”:

CDA(f)(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.

These two definitions are extremely broad in scope and have been interpreted that way by courts. It is difficult to imagine, based on these definitions, what doesn’t qualify as an “internet computer service” because it can be read as the definition of how all sites on the Internet operate.

See also EFF: CDA 230 protection for bloggers FAQ.


Major Cases

Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135 [SDNY 1991] (via BitLaw)

An illustration of applicable law before enactment of CDA 230.

Stratton Oakmont, v. Prodigy Services Co., 1995 WL 323710 [NY 1995] (via EFF)

The case that led to CDA 230. This court held that Prodigy was a “publisher” of a libelous comments about regarding plaintiff securities investment banking firm, where the comments appeared on an online bulletin board over which Prodigy exercised editorial control, and was thus liable for the for the libel as any publisher would be.

Zeran v. AOL, 129 F.3d 327 [4th Cir. 1997] (via Tech Law Journal)

“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. Congress’ purpose in providing the § 230 immunity was thus evident. Interactive computer services have millions of users. 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.” 129 F.3d 330-331.

Blumenthal v. Drudge, 992 F.Supp. 44 [DC Cir. 1998] (via Tech Law Journal)

“AOL has certain editorial rights with respect to the content provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL. Yet it takes no responsibility for any damage he may cause. AOL is not a passive conduit like the telephone company, a common carrier with no control and therefore no responsibility for what is said over the telephone wires. Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor. But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.” 992 F.Supp 51-52.
Summary and Links to Pleadings.

The original article at issue in the case.


Other cases of note:

Doe v. GTE Corp. 347 F.3d 655 [7th Cir. 2003]

CDA 230 “bears the title ‘Protection for Good Samaritan blocking and screening of offensive material,’ hardly an apt description of its principle effect is to induce ISPs to do nothing about the distribution of indecent and offensive material via their services. Why should a law designed to eliminate ISPs’ liability to the creators of offensive material end up defeating claims by the victims of tortious or criminal conduct?” 347 F.3d ___.

Barret v. Rosenthal 9 Cal. Rptr.3d 142 [Cal. App. 1st Dist. 2004] (via California Anti-SLAPP Project)

CDA 230 “cannot be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory content.” 9 Cal. Rptr.3d 152.

* But this decision is under review by the California Supreme Court.

Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055 [CD Cal. 2002] (via EFF)

Held: That an Internet matchmaking service that hosts profiles created through multiple-choice questionnaire was an information content provider with respect to those profiles.

Ben Ezra, Weinstei, & Co., v. AOL, 206 F.3d 980 [10th Cir. 2000] (via 10th Circuit)
Schneider v. Amazon.com, 31 P.3d 37 [Wash. App. Div. 1 2001] (via FindLaw)
Batzel v. Smith, 333 F.3d 1018 [9th Cir. 2003] (via California Anti-SLAPP Project)



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