Due to the major expansion of social media channels and online forums on the Internet, the issue of defamation has taken on a new face. Defamation is a problem that has existed for decades, but only in recent years has it started to undergo extensive changes and evolve to cover more platforms. As a result, more parties than ever are being seen as potentially liable for defamation, including those that should not bear the liability burden.

After the decision in Stratton Oakmont, Inc v Prodigy Services Co, a 1995 case from the New York Supreme Court, Congress made changes to federal legislation surrounding Internet defamation. Congress chose to incorporate a “Good Samaritan” provision into the Communications Decency Act (“CDA”). Section 230(c) offers protection to online service providers. Service providers are the creators of online forums and social media pages, such as Facebook, RipOffReport.com or CompaintsBoard.com.

Section 230 protects the service provider from being held accountable for content their users post to the website. One of the leading decisions interpreting Section 230 of the CDA is Zeran v America Online, Inc, a 1997 case decided in the Fourth Circuit. There the Court held that Section 230 precluded courts from considering claims placing an online service provider in a ‘publisher’s role’. Lawsuits looking to hold online providers liable for traditional publisher/editor functions, including deciding whether or not to publish material, were therefore barred. The Court found that Section 230 had been enacted, in part, to “maintain the robust nature of the Internet communication and, accordingly, to keep government interference in the medium to a minimum.”[1] This decision created the impression of an absolute liability for service providers, whereby they could not be held accountable under any circumstances for user content.

However, not all Courts across the US have held that Section 230 of the CDA provides absolute immunity. Just recently, in a decision based out of Washington, the Supreme Court denied immunity to the service provider under Section 230. In JS v. Village Voice Media Holdings, the Washington Supreme Court found that where the Internet provider’s terms of use were designed to induce sex trafficking, the provider would fit within an exemption and not receive immunity under the clause. The case went to the Supreme Court over a 12(b)(6) motion (motion to dismiss), but the Court held that if the Plaintiffs could prove Backpage.com’s terms of use were designed to aid pimps in advertising services, the suit could move forward. Where an Internet provider materially contributes to the posting of illegal content, they are not protected under Section 230, at least not in Washington.

The debate regarding the scope of Section 230 and whether or not it provides absolute immunity to service providers is unlikely to end until either Congress amends that section, or the US Supreme Court choses to hear a case that will force them to consider the extent of the limitations of Section 230.

For more information about the implications of Section 230 and how it may impact you as a service provider or a victim of defamation, contact Revision Legal’s Internet Defamation attorneys through the form on this page or call 855-473-8474.

[1] 129 F3d 327, 330 (4^th Cir 1997).

The Scope of Section 230 Immunity

Section 230(c)(1) of the Communications Decency Act states 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. Three requirements define the immunity: the defendant must be a provider or user of an interactive computer service; the plaintiff must seek to hold the defendant liable as a publisher or speaker; and the information at issue must have been provided by another information content provider — meaning someone other than the platform itself.

The breadth of this immunity cannot be overstated. Under Zeran, the immunity applies even where the platform has actual knowledge of the defamatory content and declines to remove it. Under Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the immunity applies even to causes of action framed as promissory estoppel or negligence rather than defamation, as long as the underlying theory treats the platform as a publisher. Courts have consistently held that Section 230 immunizes platforms against claims arising from user-generated content regardless of how creatively the plaintiff labels the cause of action.

When Section 230 Does Not Apply

Section 230(e) contains express exceptions that preserve liability in several categories regardless of the provider/user distinction. The most practically significant are:

• Federal criminal law. Section 230 does not immunize providers from federal criminal prosecution, regardless of whether the content was user-generated.
• Intellectual property law. Section 230(e)(2) expressly excludes claims arising under federal intellectual property law, including copyright and trademark. A copyright holder can therefore pursue a platform for hosting infringing user content under the DMCA framework, which Section 230 does not affect. Section 230 also does not immunize state law intellectual property claims — a contested point that has generated circuit splits on whether state trademark and unfair competition claims are preempted by Section 230.
• FOSTA-SESTA. The Allow States and Victims to Fight Online Sex Trafficking Act, enacted in 2018, amended Section 230 to remove immunity for civil claims and state criminal prosecutions arising from sex trafficking. This was the statutory basis for the Backpage litigation referenced in the original post.

Courts have also carved out a judicial exception for cases where the platform is itself the information content provider — where it creates or materially contributes to the creation of the unlawful content rather than merely hosting it. The Ninth Circuit’s decision in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc), is the leading authority: Roommates.com lost Section 230 immunity for questionnaire prompts that required users to disclose race and family status as conditions of listing, because the platform itself designed the discriminatory query structure.

State Law Claims and Preemption

Section 230(e)(3) expressly preempts any state law that is inconsistent with the federal immunity: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” This preemption provision has been broadly applied to bar state defamation, negligence, and invasion of privacy claims against interactive service providers for user-generated content.

The preemption scope is not, however, unlimited. State laws of general applicability that do not impose publisher-type liability on interactive services are not preempted. A state law requiring platforms to disclose certain information to users — a transparency obligation rather than a publisher liability rule — survives Section 230 preemption. This distinction is the basis for recent state platform transparency laws enacted in Texas and Florida, whose constitutionality was addressed by the Supreme Court in Moody v. NetChoice, LLC, 603 U.S. ___ (2024).

Practical Strategies When Section 230 Blocks Direct Platform Claims

When Section 230 immunity forecloses a direct claim against the platform, victims of online defamation have several practical options that do not depend on overcoming that immunity:

• Sue the original poster directly. Section 230 immunizes platforms, not the individuals who post defamatory content. The poster is fully liable for defamation if the elements are met. Identify the poster through a John Doe subpoena and proceed against her as the primary defendant.
• Use platform reporting processes. While platforms are not legally required to remove defamatory content, many do so when it clearly violates their terms of service. Report the content through official channels and document the platform’s response — its decisions and the reasons given may be relevant to future proceedings.
• DMCA takedown for content that incorporates copyrighted material. If the defamatory post includes copyrighted content you own — a photo, a video clip, a written excerpt — a DMCA takedown notice under 17 U.S.C. § 512 requires the platform to remove the content expeditiously. This route bypasses Section 230 because the DMCA is an intellectual property claim expressly excluded from Section 230 immunity.

If you are dealing with defamatory content on Facebook, Twitter, Reddit, or any other platform and need to understand your options given Section 230’s limitations, Revision Legal’s internet defamation attorneys can advise you. Contact us through the form on this page or call 855-473-8474.