This is Brian Hall, an attorney with Traverse Legal, PLC, an internet law firm representing internet companies throughout the world. Today, I will be answering the question: Is a web host immune from liability under the Communications Decency Act?
So, to start, the Communications Decency Act, sometimes referred to as the CDA, is a piece of legislation passed by congress in 1996. It provides in the language of the Act itself that 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. What that means is that so long as the web host is merely providing the means by which someone can post content and display information to others on the internet, they will not be subject to liability in connection with claims related to, most importantly, defamation.
However, that does not mean that a web host would be immune from liability in all cases. The CDA’s immunity is not absolute, put another way. Instead, the CDA provides that nothing in the CDA should be construed to limit or expand any law pertaining to intellectual property. So, what that means is if a particular claim deals with trademarks, copyrights, trade secrets, patents or other intellectual property, a web host may be held liable regardless of the CDA’s existence. And that liability could be contributory liability, vicarious liability or even direct liability.
So, it’s critical to first determine what the type of liability would be when answering the question whether or not a web host would be liable or immune from liability under the CDA. If the claim relates to defamation, for example, it is more likely than not that the immunity under the CDA applies. However, if we’re talking about trademark infringement, copyright infringement , trade secret misappropriation, patent infringement or some other intellectual property right. Then the immunity is less likely to apply.
There is a whole line of cases that deal with Section 230 Immunity. And all of it goes to the facts. However, it is important to recognize that these principles are what the CDA intended to provide and is how the courts have interpreted it. So, ultimately, when looking at whether or not a web host may be immune from liability, you need to consult with an internet lawyer who can first identify what cause of action or claim is at stake. Once that’s identified, it’s much easier to determine whether or not you need to be naming not only the poster of the content, for example, or the poster of the content as well as the web host itself.
This doesn’t only apply in lawsuits. In threat letters and cease and desist letters, it’s fairly common to see attorneys that appear to overreach who may be liable in certain situations. Therefore, if you have received a cease and desist letter as a web host, you’d be well served to contact an internet lawyer who can tell you whether or not you are subjected to liability or whether you can claim Section 230 Immunity.
As always, these are fact-specific cases, but if you keep these principles in mind, you should be well served moving forward. Once again, this has been Brian Hall answering your question: Is a web host immune from liability under the Communications Decency Act.