Section 230 of the Communications Decency Act (47 USC 230), entitled “Protection for private blocking and screening of offensive material”, is an important federal statute for any interactive computer service provider. As a technology lawyer, my law practice largely focuses on SaaS law, software licensing law and Internet based businesses, this statute impacts several of my clients.The statute essentially provides protection for providers of interactive computer services against information published by third parties on their site, provided that “a provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections… are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.”
Where the notification requirement is met, Section 230 provides certain protections from liability when users encounter objectionable material through the Internet service. 230 essentially divides online content into first party content and third party content and says that online parties cannot be liable for third party content unless (1) it is covered by the Electronic Communications and Privacy Act (protection of individual’s communications via technology by government officers without court order), (2) federal criminal enforcement, or (3) intellectual property claims.
I often read the Technology & Marketing Law Blog by Eric Goldman. In a recent post, Professor Goldman summarizes liabilities under Section 230. Here is an excerpt:
Despite 230, websites always remain liable for first party content.
* Ex 1: if they post their own content, they are liable
* Ex 2: if they make marketing representations, they are liable under standard doctrines like contract and false advertising law. Even so, some courts have been giving websites a pass for marketing representations which are rendered untrue by third party actions.
* Ex 3: Barnes v. Yahoo: website can by liable under promissory estoppel theory if it promises to remove third party content
Plaintiffs often try to argue that third party content becomes first party content.
* Ex 1: website contract may take ownership of user-supplied content
* Ex 2: SEC says that issuers endorse/adopt content that they link to
However, these arguments generally fail under 230. If content starts out as third party content, there is almost nothing the website can do that will convert the content into first party content. As a result, agency civil enforcement actions can unexpectedly run afoul of 230 when they collapse the distinctions between first party and third party content.
However, there is a possible workaround. In the Roommates.com case, the Ninth Circuit said that websites can lose their 230 protection in civil cases if they “encourage illegal content” or “require users to input illegal content.” The FTC is relying on this language in its recent Pricewert/3FN enforcement action against an Internet access provider who facilitated customers allegedly engaged in illegal activities.
As a final point, with the global nature of many ISPs, it is worth noting that many other countries do not afford the protections that the US provides under Section 230 (e.g., certain first world countries have found ISPs liable for negligence where they have failed to investigate material or user published content). For Internet based companies doing business globally, it is worth considering the application of Internet laws of those countries.* Ex 1: if they post their own content, they are liable
* Ex 2: if they make marketing representations, they are liable under standard doctrines like contract and false advertising law. Even so, some courts have been giving websites a pass for marketing representations which are rendered untrue by third party actions.
* Ex 3: Barnes v. Yahoo: website can by liable under promissory estoppel theory if it promises to remove third party content
Plaintiffs often try to argue that third party content becomes first party content.
* Ex 1: website contract may take ownership of user-supplied content
* Ex 2: SEC says that issuers endorse/adopt content that they link to
However, these arguments generally fail under 230. If content starts out as third party content, there is almost nothing the website can do that will convert the content into first party content. As a result, agency civil enforcement actions can unexpectedly run afoul of 230 when they collapse the distinctions between first party and third party content.
However, there is a possible workaround. In the Roommates.com case, the Ninth Circuit said that websites can lose their 230 protection in civil cases if they “encourage illegal content” or “require users to input illegal content.” The FTC is relying on this language in its recent Pricewert/3FN enforcement action against an Internet access provider who facilitated customers allegedly engaged in illegal activities.
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Alerding Castor is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, probate and business litigation.
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