When Does Internet Service Provider Lose Immunity?

, New York Law Journal

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Joseph D'Ambrosio and Andrew I. Mandelbaum
Joseph D'Ambrosio and Andrew I. Mandelbaum

Section 230 of the Communications Decency Act of 1996 (CDA 230) protects Internet service providers (ISP), website hosting services (hosts), and domain name registrants / site administrators (site owners), and certain other providers of online services (collectively, websites), from being treated as the publisher of actionable content placed on their websites by third parties. Courts around the country have consistently held that unless the website creates or develops the content, CDA 230 protects them from liability for such content. However, recent decisions have suggested, and one court has recently held, that the term "develop" encompasses more than creating or authoring the allegedly actionable content, which could limit the immunity provided by CDA 230.

Background

CDA 230 was enacted to respond to the growing wave of claims against websites for the "publication" of unlawful content on their sites. See 47 U.S.C. §230. Before CDA 230, any ISP, host, or site owner responsible for providing access to, hosting, or owning a website or blog was a possible target for litigation if unlawful content was published on that website or blog.

The genesis of CDA 230 was a pair of New York cases in the 1990s which served to underscore why websites should be treated differently than traditional "publishers" for purposes of tort liability. In Cubby v. CompuServe, 776 F.Supp. 135 (S.D.N.Y. 1991), the court held that CompuServe was not a "publisher," and therefore not liable for defamations because it did not monitor or filter the posts. Stratton Oakmont v. Prodigy Servs., 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. 1995), also involved an online message board, but Prodigy took affirmative steps to filter content and the court held Prodigy was therefore a "publisher" and liable in tort. This created the odd result of rewarding an ISP for doing nothing, but punishing one for trying to prevent unlawful content. This unfairness prompted Congress to take action.

The immunity found in section 230 of the CDA provides in relevant part 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.

47 U.S.C. §230. "Information content provider" is "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." Id.

Where to Draw the Line?

Since the adoption of CDA 230, courts have uniformly interpreted the statute to provide broad immunity to websites for unlawful content created by others. See, Zeran v. America Online, 129 F.3d 327, 330 (4th Cir. 1997). For example, if a defamatory comment is published by a user on a message board website like Reddit, the site owner, host, and ISPs are immune. Similarly, Yahoo! is immune from liability when an anonymous poster in a chat room contributes allegedly defamatory statements, and Facebook is immune when members post actionable content on other members' Facebook pages. This broad interpretation of immunity is consistent with the intent and purpose of CDA 230. But how far does this immunity extend? Does the immunity extend when the website does more than just provide a neutral forum for users to post comments online?

The CDA itself does place limitations on this broad immunity. By its very language, CDA 230 does not immunize parties who are "responsible, in whole or in part, for the creation or development of information…" (emphasis added). It is easy to determine who creates content. It is the "development" part of this test that has created some recent confusion. The early cases interpreting the CDA involved now-defunct ISPs such as AOL and Prodigy, and search engines like Google, which have historically been neutral when it comes to content posted by users. With the explosion of blogs and gossip websites over the past decade, however, courts have been forced to re-examine the breadth of CDA 230 immunity when the website is less than neutral as to the content. For example, would the website www.IHateDonaldTrump.com be responsible for unlawful content posted by third parties?1 We contend that the simple answer is "no."

The question courts now face is when does a website cross the line and "develop" the allegedly unlawful content? Should a lack of neutrality matter when assessing immunity under the CDA? We argue that notions of neutrality, morality and offensiveness with regard to site administration have no proper place in the interpretation of CDA immunity.2

Meaning of Key Words

Why have issues of neutrality and offensiveness become significant to CDA 230 interpretation? Some courts have suggested that merely encouraging unlawful content through site administration is sufficient to constitute the "development" of such content, thereby stripping certain websites of CDA immunity. Jones v. Dirty World, 840 F.Supp.2d 1008 (E.D. Ky. 2012); Shiamili v. Real Estate Group of N.Y., 17 N.Y.3d 281, 294-94 (N.Y. 2011) (Lippmann, J, dissenting) (The authors represented the defendant in Shiamili.) We do not believe that this is a reasonable construction of CDA 230.

The words encourage and develop have different meanings. "Develop" means "to cause to grow or become bigger or more advanced."3 "Encourage" means to "make more appealing or more likely to happen."4 The importance of the distinction is plain when considered in the context of micro­blogging platforms such as Tumblr.

When a user posts content onto Tumblr, that content is immediately published to that user's "followers." Each Tumblr user has a certain list of other users whom they follow, and content from all of the blogs a user follows appears in each user's feed. Thus, if defamatory content is published by a Tumblr user, it would appear in the feed of each of that user's followers. Each follower would thereby "publish" the actionable content (which, itself, is usually content hosted somewhere else on the web).

The essential feature of Tumblr is the "reblog" feature. When a user reblogs content that appears in the feed of other users—such as, in this instance, putatively defamatory content—that content is then instantly published to all of the users in the re-blogger's feed. The more reblogs an item of content has, the more users to whom and by whom that content is published. Many items of content have hundreds of thousands of reblogs, and are viewed by millions of Tumblr users.

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