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defamation and the communications decency act

Defamation and the Communications Decency Act

By John DiGiacomo

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, or

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’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 (4th Cir 1997).

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