An Interpretive Framework for Narrower Immunity under Section 230 of the Communications Decency Act

Article excerpt

INTRODUCTION
I.   SECTION 230: TEXT AND BACKGROUND
II.  ZERAN, DRUDGE, AND THE MAJORITY VIEW
III. INTERPRETIVE DIFFICULTIES AND OUTMODED
     POLICY OBJECTIVES
     A. Subsections 230(c)(1) and (c)(2): Giving
        Meaning to "Good Samaritan"
     B. Subsections 230(c)(1) and (f)(3): Defining
        Information Content Providers
     C. Now-Undesirable Policy Outcomes
IV.  A NARROWER VIEW OF SECTION 230 IMMUNITY
     A. Pre-Internet Precursors: Ratification and
        Concert of Action
     B. A Narrower Interpretation of Section 230
CONCLUSION

INTRODUCTION

For well over a decade, courts and commentators have struggled to apply and interpret Section 230 of the Communications Decency Act of 1996 (CDA). Section 230 was designed to accomplish two objectives: First, Congress sought to protect children from Internet pornography by encouraging Internet Service Providers (ISPs) and websites to censor content voluntarily; second, Congress sought to promote freedom of expression on the Internet. To accomplish these two divergent goals, Section 230 grants immunity from tort liability to all websites and ISPs that are not themselves responsible for the creation or development of tortious content. Almost all courts have interpreted Section 230 immunity broadly, covering even publishers who take an active role in the production of controversial content, so long as they are not the authors. Although this broad interpretation effects the basic goals of the statute, it ignores several serious textual difficulties and mistakenly extends protection too far by immunizing even direct participants in tortious conduct. A proper reading of the statute--one that accounts for the background common law principles of vicarious tort liability upon which Section 230 was enacted--would correct both problems.

Part I introduces Section 230's history and purpose. Part II reviews the courts' broad interpretation of the statute. Part III examines several textual difficulties that this broad interpretation raises. Finally, Part W attempts to solve these difficulties by interpreting Section 230 in light of the relationship between two strains of pre-Internet vicarious liability defamation doctrine and Stratton Oakmont, Inc. v. Prodigy Services. Co., the defamation case that prompted Congress to pass Section 230. The analysis indicates that although the immunity provision of Section 230 is broad, Congress did not intend to abrogate traditional common law notions of vicarious liability. Some bases of vicarious liability remain, and their continuing validity both explains the interpretive difficulties and undergirds courts' recent push to narrow Section 230 immunity.

I. SECTION 230: TEXT AND BACKGROUND

Congress enacted Section 230 of the CDA (1) to achieve two objectives: (2) to address the problem of children accessing pornography and other offensive material on the Internet, (3) and to promote freedom of expression on the Internet, a then-new and potentially fragile communications medium. (4) To accomplish these goals, Section 230 grants immunity from tort liability to computer service providers such as websites and ISPs that provide access to defamatory content created by third parties:

[section] 230(c) Protection for "Good Samaritan" blocking and screening of offensive material

(1) Treatment of publisher or speaker 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.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of-

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

. …