Section 230 of the Communications Decency Act of 1996 provides immunity from liability to providers of interactive computer services who publish information provided by others. If you are a provider of interactive computer services, you need to know what you are liable for if someone makes defamatory comments using your services or technology. Online Libel Lawyer Enrico Shaefer discusses this landmark piece of internet legislation with Damien Allen on today's program.
- Section 230 deals with the issue of third party providers of internet and web hosting services and what exposure they have for user generated content on their website.
- Provides immunity from liability to providers of interactive computer services who publish information provided by others
- Defamation, liable, negligence, even criminal law claims, have been held to be covered by Section 230 Immunity.
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Damien Allen: Good morning and welcome to Defamation Law Radio. My name is Damien Allen, and joining me on the phone is Enrico Schaefer of Traverse Legal, PLC. Good morning and welcome to the program, Enrico.
Enrico Schaefer: Good morning, Damien.
Damien Allen: Today we’re discussing the Section 230 Immunity in the Communications Decency Act. Enrico, what is Section 230 Immunity, and how does it apply to internet space?
Enrico Schaefer: Section 230 of the Communications Decency Act of 1996 is a very dramatic and, in many people’s view, a landmark case of internet legislation passed in the United States in order to deal with the issue of third party providers of internet services and what exposure they have for user generated content on their website. So, it provides immunity from liability to providers of interactive computer services who publish information provided by others. So, Damien, what that means is, if you have a blog and other people publish comments on your blog, is the person who provides that blog and who provides the interactive computer service responsible for a comment by a third party on their blog? If I’m running a bulletin board system, and people who are registered to use that service post information that is potentially defamatory about someone else, and they post that on my bulletin board, and my role is simply providing an interactive computer service (the bulletin board) to people, is that service liable for defamation that may allegedly have occurred in their system as a result of user generated content of third parties who publish content? If I’m running a business model which allows people to complain about companies, and I provide the technology which allows consumers to log in, even anonymously, and say, I think that this particular company is terrible, and they provided me terrible customer service, as the person who runs that system, that interactive computer service that takes user-generated or third party content, allows it to be put online, is that intermediary liable for things such as defamation, and what happens when that provider receives a threat letter alleging that they’re responsible for defamation by third parties or breach of contract or copyright infringement or trademark infringement, how and when does Section 230 insulate that interactive computer service provider with immunity from being sued for third party content?
Damien Allen: What kinds of claims does Section 230 protect service providers from getting sued for?
Enrico Schaefer: Well, the first thing is that the defendant must be a provider of interactive computer services, ok. So, essentially, what that means is that they’re simply providing the technology for third parties to post information and Section 230 says no provider or user (someone who’s just on the website) of an interactive computer service shall be treated as the publisher or speaker of any information provided by that content provider. So, the most obvious and most common issue here is defamation. So, if someone posts something that’s defamatory to my website, normally Section 230 is going to apply to that potential claim and say, hey, look it! Your beef is with the person who posted the content not with me as the service provider. You need to go after the person who did the content. So, covered issues are defamation, liable, negligence, negligent misrepresentation, interference with business expectancies, state causes of action, nuisance, premises liability, cyber stalking. There’s certainly some case law out there that says intellectual property claims, copyright and trademark claims are protected, although there is contrary authority, and so, you have to be careful when it’s a trademark or copyright claim if you are a internet service provider in terms of how you deal with that issue. But clearly, defamation, liable, negligence, these types of claims, even criminal law claims, have been held to be covered by Section 230 Immunity.
Damien Allen: So what does someone do if they’re getting defamed on the internet, on a website that’s hosting the content? What if the person who posted the content is anonymous? Does that information potentially just live there forever even though it’s false and defamatory?
Enrico Schaefer: Well, you know, that is the big trick, and that is one of the controversial things about Section 230. There is a lot of commentary about whether Section 230 is good or bad, whether it provides too much protection because if you have a website that’s offering the ability to post consumer complaints, such as Yelp, and someone says something on that website anonymously (a third party post or review which is knowingly false) that says clearly defamatory things about a company, it leaves that company in a challenging position. So, let’s say someone charges that the CEO of a company made inappropriate sexual advances towards another employee and that people should boycott that company. Well, let’s say that it is all false, and the person who posted it was all false, and let’s say that’s person is anonymous so you can’t see who posted it. What does that company, what does that CEO do? And that’s a big challenge. Now, what Section 230 says is that under normal circumstances you may not be able to sue the provider of internet services (the internet service provider) you can’t sue them, for the defamation. But you can sue John Doe defendant. You can sue the anonymous poster as a John Doe, and then get a subpoena power to see if you can unlock the IP address, the email address, the registration information that may have been provided by the anonymous user. Now, the anonymous user has provided all false information, that obviously becomes more of a challenge, but you’re basically fishing up stream. You’re trying to get up stream to get information about who that person is, and you typically are going to have to go to court in order to get a subpoena power in order to start investigating that information. If the service provider is taken credit card numbers, then typically you’re going to try and get that credit card information which has to be linked to a real person unless it’s a stolen credit card, which sometime happens, and then see if you can identify the person that way, but it’s a challenging issue, Damien, no question about it, and Section 230 remains and will remain a fairly controversial provision by the U.S. Congress and currently one of the more dramatic “internet laws” passed in the United States today.
Damien Allen: Thank you for joining us today, Enrico.
Enrico Schaefer: You’re welcome, Damien, my pleasure.
Damien Allen: You’ve been listening to Defamation Law Radio. My name is Damien Allen. Everybody have a great afternoon.
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This is a good summary of Section 230 immunity and the way in which you can get to the individual who posted the online defamation by naming a John Doe Defendant and using a subpoena to identify the poster of the defamatory statements online. Protecting your online reputation is not difficult is typically worth the investment as once your reputation is tarnished online it is difficult to get it back.
Posted by: Mark Clark | March 15, 2011 at 02:34 PM