CDA Section 230: Mooring Your Company's Website in a Safe Harbor

By Mark Wilson, Esq. on September 10, 2014 | Last updated on March 21, 2019

Imagine you run a website. We'll call it "Schreddit." It's a website where millions of people around the world post interesting news items, comments, and images. One day, a user posts a link to stolen celebrity nude photos -- celebrities like, oh, we'll call her "Schmennifer Schmawrence." Does your company have to take the posting down?

Naturally, it's the same as the answer to all legal questions: "Maybe. It depends." The Communications Decency Act (CDA) prohibits online obscenity, but that's not very important. Within the Act is a so-called safe harbor provision, found in 42 USC § 230, which immunizes computer service providers from torts committed by users of those services.

If your company operates any kind of online forum, you should make sure you know all about it.

It's Only a Sentence

Here it is: "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." But that's not even the most important part of Section 230. The real trick -- and where all the litigation comes from -- is how the statute defines interactive. It means "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."

In case after case, the question turns on how much involvement the provider has in developing the information. In Dart v. Craigslist, a federal court in Illinois found that Craigslist could use Section 230 to shield itself from liability for soliciting prostitution because Craigslist didn't create the ads and the mere fact that users could search for them wasn't enough to make Craigslist liable. More recently, the Sixth Circuit said the gossip blog could use the Section 230 safe harbor (even though the website's proprietor did encourage users to submit stories to the blog).

Back to Reddit ... er, Schreddit

OK, I'll level with you: That wasn't a hypothetical at all! Certainly someone could include Reddit in a suit over the celebrity nude photos, but it's likely that they'd be quickly dismissed as a defendant based on Section 230. They were far less involved in those posts than Nick Richie, editor of TheDirty, was in his posts, but he still got off scot-free.

Any media platform -- whether it's Twitter, or a bulletin board, an app, or even a comments section -- could fall within Section 230's scope. The problem, though, is determining where the boundary is between taking part in the creation of content and not participating at all. "User-generated content" has become the watchword for a large chunk of the Internet. Just because Facebook -- maybe you've heard of it? -- allows users to post, say, defamatory things, it doesn't follow that Facebook should be legally responsible for those things.

For the time being, Section 230 is a pretty huge obstacle to anyone suing just because a company provides a method of communication. State AGs have been trying for years to rein it in; something like the celebrity photo hacks could be the animus to get that accomplished.

In the meantime, rest assured that you probably don't have to moderate your online forums; and, in a case of bizarre incentives, it's probably better if you don't.

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