Section 230

Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others:

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.

In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:

1. The defendant must be a "provider or user" of an "interactive computer service."
2. The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

Content Providers Are Not Afforded Section 230 Protection

On the other hand, website operators are not protected by Section 230 if they created the content in question, rather than merely publishing third-party content. See Anthony v. Yahoo! Inc.,421 F.Supp.2d 1257, 1262-63 (N.D. Cal. 2006), holding that the CDA did not bar fraud and negligent misrepresentation claims against Yahoo based on alleged creation of false user profiles in order to trick new members into joining and to stop current members from leaving; Hy Cite Corp. v. BadBusinessBureau.com, 418 F.Supp.2d 1142, 1149 (D. Ariz. 2005).

Recently, the Ninth Circuit distinguished Carafano by finding that it does not necessarily control where unlawful information was provided by users in direct response to questions and prompts from the operator of the web site. Fair Housing Council of San Fernando Valley v. Roommates.com, Nos. 04-56916, 04-57173, 2007 WL 1412650, at *2-4 (9th cir. Dec. 5, 2006). Thus, Roommates.com was protected where it provided open fields for "additional comments" but lost CDA protection where it provided pull-down menus for users' responses. Id. This holding suggests that where an ICS takes any part in creating content, even where it only makes brief suggestions as to that content, it may lose its Section 230 protection.

The Roommates.com decision appears to fly in the face of Zeran's holding that the exercise of a publisher's traditional editorial functions will not place an ICS outside the scope of Section 230 protection.

Section 230 and Wikipedia

Wikipedia is a project whose goal is to “create and distribute a free encyclopedia of the highest possible quality to every single person on the planet in their own language.” The contributors to this project are hundreds of thousands of volunteers scattered across the world. Anyone may edit or contribute to Wikipedia. This means that any blatantly false or slanderous information may be carried in the encyclopedia for days, weeks or months. (For example, for several months, Wikipedia carried a blatantly false biographical article on John Seigenthaler, Sr., implicating him in the assassination of John F. Kennedy. An anonymous user had made the edit to the Seigenthaler article as a joke). No defendant has yet sued Wikipedia for carrying such false information, but if that were to happen, its defence would be the immunity provided by 47 U.S.C. § 230(c)(1), 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.”

It has already been suggested that Wikipedia would be able to escape liability for defamatory content pursuant to § 230(c)(1)’s immunity. However, no one has yet given a detailed justifcation of that conclusion, and courts interpreting § 230(c)(1) have not been precise with respect to their choice of the several alternative approaches to the statutory text.

Anthony Dipierro has commented before, that "It should be pointed out that Section 230 does not say that an interactive computer service is not a publisher, it says that an interactive computer service shall not be treated as a publisher. It doesn't matter one bit whether or not the Wikimedia Foundation actually is a publisher." But, another observer goes on to state:

The more Wikipedia becomes involved in editorial processes that shape the content, the less it can rely on immunity. The chink in Wikipedia's armor appears to be the involvement of admins in article formation. [Ken] Myers acknowledges this even though he is optimistic about Wikipedia's immunity.

One editor of Wikipedia attempted to change policy-related instances of the words "published" and "publisher" to "interactively served", to help clarify Wikipedia's non-role as a publisher. However, this editor was blocked from ever again editing Wikipedia, and the words "published" and "publisher" were restored. When this block was challenged, the response was:

Substituting forms of the word "publish" with other words doesn't change Wikipedia's legal status. "Publish" means different things in different contexts. If an organization satisfies the CDA definition of "publisher", then the organization is a publisher, no matter which word we use to describe it. These form-over-substance edits of yours are disruptive and inappropriate. The block is appropriate.

However, that explanation was later erased from public view, three and a half months after the explanation was issued. Clearly, Wikipedia's Section 230 immunity is a perplexing, tenuous status.

References

• Myers, Ken, Harvard Journal of Law & Technology, Volume 20, Number 1 Autumn 2006