Note: For a general overview of Section 230 of the Communications Decency Act, see the page on Immunity for Online Publishers Under the Communications Decency Act in this legal guide.
Courts have consistently held that exercising traditional editorial functions over user-submitted content, such as deciding whether to publish, remove, or edit material, is immunized under Section 230. As one moves farther away from these basic functions, immunity may still exist, but the analysis becomes more fact-specific. While the case law addressing some of these activities is still developing, generally speaking Section 230 provides immunity for the following actions:
- Screening objectionable content prior to publication. This is the quintessential activity that Section 230 was meant to immunize, and courts have consistently held that screening content prior to publication does not make an interactive computer service liable for defamatory material it does publish on its site.
- Correcting, editing, or removing content. A website operator may take an active role in editing content, whether for accuracy or civility, and it will still be entitled to Section 230 immunity so long as the edits do not substantially alter the meaning of the content (i.e., make an otherwise non-defamatory statement defamatory). In an interesting case involving New Jersey politics, Stephen Moldow ran a website and forum where users criticized local elected officials. Muldow regularly deleted offensive messages, gave guidelines for posting, and edited and re-posted messages to remove obscenities. Although the plaintiffs argued the Moldow participated in the creation of the defamatory content and should therefore be held liable, the court concluded that Moldow’s activities were nothing more than the exercise of traditional editorial functions and thus immunized under Section 230. Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005).
- Selecting content for publication. A website operator may select content for publication from a pool of user-submitted material without losing Section 230 immunity. In Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the court granted immunity to a museum administrator who selected, edited, and then published on the museum's listerv and website emails he had personally received that claimed Batzel possessed paintings looted by the Nazis during WWII. The court held that Section 230 applied so long as a third-party "provided" the disputed email for publication.
- Soliciting or encouraging users to submit content. Soliciting or encouraging users to submit content does not itself deprive a website operator of Section 230 immunity. For example, in Corbis Corporation v. Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004), the court immunized Amazon.com from Washington State Consumer Protection Act and tortious interference with business relations claims even though Amazon solicited and encouraged third parties to post images and other content on its site. But, an important U.S. Court of Appeals decision suggests that website operators may be held liable for encouraging users to submit unlawful content. See Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc) ("If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune."). The Roommates court's statements regarding encouragement are non-binding dicta, however, so later courts may not follow them. In Best Western International, Inc. v. Furber, No. CV-06-1537 (D. Ariz. Sept. 5, 2008), the court said that creating a website that "impliedly suggests that visitors should make [defamatory statements]" does not strip an operator of Section 230 immunity. See slip op., at 16 (citing Roommates).
- Paying a third party to create or submit content. So long as the author of the material is not your employee (typically a question of state agency law), you will not lose Section 230 immunity if you pay for the content. One of the first cases to test this involved Matt Drudge, who in the late nineties received all of his income from AOL, which paid him for his popular gossip column and exercised "certain editorial rights with respect to the content." When Syndey Blumenthal sued Drudge and AOL for defamation, the court concluded that the payments to Drudge did not make him an AOL employee nor did they make AOL responsible for his postings and held that Section 230 immunized the service. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
- Providing forms or drop-downs to facilitate user submission of content. Most courts have held that a website will not lose immunity if it facilitates the submission of user content through neutral forms and drop-downs. For example, in a case involving Matchmaker.com, a B-list actress sued the operator of the site after a user created a fake profile that listed her name and home address and indicated an interest in finding a sexual partner. The Ninth Circuit Court of Appeals held that the website was immune from the actress' claims of invasion of privacy, misappropriation, defamation, and negligence, noting that while "the questionnaire facilitated the expression of information by individual users[,] the selection of the content was left exclusively to the user." Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003). (As discussed above, a recent decision by the Ninth Circuit casts some doubt on the Carafano decision. See Fair Housing Council v. Roommates.com.) In a similar case involving a publisher of business databases, an anonymous user used an entry form to submit false information about David Prickett and his wife indicating that they were in the adult entertainment and lingerie business. The court rejected the Pricketts' argument that infoUSA should lose its immunity because it helped create the information by supplying a form and drop-down boxes, concluding that it was the anonymous third party who actually made the choice and submitted the information. Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006).
- Leaving content up after you have been notified that the material is defamatory. In order to gain the benefit of Section 230's immunity provisions, you do not have to remove content
from your site if you receive notice that the material is
defamatory. In the well-known Zeran v. America Online
case, an AOL user posted messages purporting to offer for sale items
that supported the Oklahoma City bombing and falsely included Kenneth
Zeran’s contact information. Despite Zeran’s repeated demands that AOL
take down the messages, they remained on the site until he filed a
lawsuit. In an early test of Section 230's scope, the U.S. Court of Appeals
for the Fourth Circuit held that Section 230 immunizes interactive computer
services even if they have been notified that the material is
defamatory. See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
You might, however, lose the protection of Section 230 if you promise to remove content and then fail to do so. The Ninth Circuit found in Barnes v. Yahoo!, Inc., that Section 230 did not shield a site from a "promissory estoppel" claim. "Promissory estoppel" is a legal principle stating that if you promise to do something, you might be held responsible for the consequences of another's responsible reliance on your promise, even when you have no independent legal obligation to perform the promised act. In Barnes, Cecilia Barnes' ex-boyfriend had created fake profiles of her on a Yahoo! site, which contained nude photographs of Barnes and solicitations for sexual intercourse. After several months of sending requests to Yahoo! to remove the fake profiles, a Yahoo! employee contacted Ms. Barnes, asked her to re-send her previous statements, and told Barnes that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." Barnes claimed that she relied upon Yahoo!'s promise and did not take other measures to protect her reputation, but that Yahoo! never removed the profiles. Consistent with previous cases, the Ninth Circuit found that Section 230 protected Yahoo! from Barnes' claim of negligence in failing to remove the fake profiles. However, the court found that once Yahoo! promised to remove the fake profiles despite enjoying Section 230 immunity, it had waived the protection of Section 230 and could be responsible for the consequences of Barnes' reasonable reliance on that promise. The court noted, however, that a general monitoring policy--such as one articulated in a site's terms of service--would not be sufficient to create liability under a theory of promissory estoppel. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).
While most courts have held that Section 230 grants interactive computer services broad, expansive immunity, some courts have been willing to limit Section 230's immunity. We cover these cases in the Online Activities Not Covered by Section 230 page of this guide.