The internet is sometimes perceived as a largely unregulated place because of the sheer volume of content that can be uploaded and shared, as well as the seemingly anonymous nature of what can happen online. Providing stability in this swirling chaos are Internet Service Providers (ISPs), that act as a hub for activity and content sharing. Facebook, YouTube, Twitter are included under the legal definition of an ISP in this context. These providers deliver useful order and community, but how liable should these companies be for the actions of their users?
When a traditional newspaper publishes something allegedly defamatory, the newspaper and the person who authored the statements can be liable for a libel claim. Applying this logic to an ISP, every time that someone Tweeted something defamatory, Twitter could be brought into court. The flaw with treating traditional publishers and ISPs the same is the quantity of postings would essentially run any major service provider into bankruptcy on legal costs alone.
Enter Section 230 of the Communications Decency Act (CDA, 47 U.S.C. § 230), which provide protections for ISPs. Section 230 protects ISP from liability form lawsuits that may arise when third-party users post material to a platform. This, however, is not an absolute protection. This is not applicable to infringement of intellectual property, e.g. posting copyrighted songs, which is handled under separate sections of the Digital Millennium Copyright Act. Section 230 also does not absolve illegal activity by users, specifically carving out user content regarding sexual exploitation of children or sex trafficking.
Section 230 immunity is most used in defending defamatory or privacy claims that emerge from users posting content online. In order for these safe harbor protections to apply (1) the defendant must be an internet service provider, (2) the cause of action, or claim made in court, must view the defendant as the speaker, or publisher of the information, and (3) the information must be provided by another user.
One of the main issues in § 230 cases is deciding whether the ISP was passive in the publication of content. If the ISP had editing control, or reviewed the content before publishing, § 230 is waived. What level of editing control that causes immunity to be lost is up to interpretation by courts. For example, in Fair Housing v. Roommates.com, the Ninth Circuit held that a housing locator site was not immune under section 230 because it was no longer a passive publisher of content. Here, the site required users to use a drop-down selection menu for preferences of roommates. Roommates.com argued that the user was the person inputting the preferences and they therefore were a passive publisher. The court disagreed and decided that because the user couldn’t opt out of giving preferences the site essentially forced the users into creating content, and therefore, Roommates.com was not a passive publisher and liable.
ISPs that allow users to post pictures, videos, messages, reviews, and other content have become an important part of or cultural exchange. Section 230 is a crucial legal tool that protects these providers and allows them to continue serving as a conduit for some of the highest and lowest speech. However, there are still gaps in the scope of protection, and policy will continue to be shaped by legislative and judicial direction.
