On April 1, a number of online sources (including Abovethelaw.com) reported that Connecticut Senator Joe Lieberman planned to propose legislation that would strip internet service providers (ISPs) of their protection under the Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). Luckily, these stories were later revealed to be a concerted April Fool’s prank, and ISP protections remain intact.
If your website has a “comments” section or otherwise allows users to post content for public viewing, you are subject to the protections of the CDA. Section 230(c) of the CDA shields ISPs from liability for defamation and other speech-based claims regarding content posted on their sites by third party users. It was passed in 1996 as a reaction to cases such as Stratton Oakmont Inc. v. Prodigy Services, Inc., 1995 WL 323710 (N.Y. Sup. May 24, 1995), in which the host of a financial message board website was held to the standard of liability for a “publisher” of allegedly defamatory content posted by third parties on the site, due to its exercise of editorial control over the site’s content (monitoring for offensive material, issuing of guidelines for posing, etc.). In relevant part, Section 230(c)(1) of the CDA provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another internet content provider.”
In applying the CDA to determine whether an ISP is shielded from liability, courts often focus on whether the content was “provided by another internet content provider,” or can be said to have been provided by the ISP itself. This distinction is exemplified by a 2007 case regarding the practices of the online service Roommates.com, in which the Ninth Circuit Court of Appeals held that the CDA protected the ISP from discrimination claims with regard to actionable content posted by users in an open ended “essay” portion of their profile, but did not provide immunity with regard to “multiple choice” questions formulated by the ISP and automatically populated into users’ profiles. Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921 (9th Cir. 2007).
The text of Section 230 of the CDA can be accessed here.