Limiting Tort Liability for Online Third-Party Content under Section 230 of the Communications Act

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I. INTRODUCTION

On December 2, 1999, the New York Court of Appeals resolved a long-running dispute pitting Prodigy, one of the nation's largest online service providers (OSPs),(1) against Alexander Lunney, a teenage boy scout.(2) The lawsuit had its origins in an e-mail message sent in Lunney's name by a Prodigy account holder to a scoutmaster in Bronxville, New York.(3) The e-mail contained a subject line that read "HOW I'M GONNA' KILL U," followed by a profanity-laced message.(4) The scoutmaster alerted the police and Lunney's local scoutmaster, who confronted the boy with the e-mail and accepted his denial of authoring the message.(5) After he learned that Prodigy terminated the accounts in his name despite his claim that he was not the holder of the accounts, Lunney sued Prodigy, claiming that Prodigy was negligent in allowing the accounts to be opened in his name and was responsible for his having been defamed.(6) Lunney later amended his complaint to add claims against Prodigy based on two bulletin board messages that had been posted on the Prodigy network in Lunney's name.(7) A New York appellate court granted Prodigy's summary judgment motion based on state common law grounds, and the New York Court of Appeals affirmed.(8)

The Lunney decision marks another chapter in an ongoing battle over whether and when OSPs might be held liable for the third-party content posted on their networks. Potential liability arises from a number of sources. For example, an OSP, like Prodigy, that offers a chat or message board service may be liable if one of its users posts defamatory content on the service, or if the OSP, on its own initiative, blocks postings that it deems to be offensive or defamatory or that otherwise violate any terms of service for message board users. Independent of these new interactive services, an OSP could also be sued for allegedly defamatory material created by third-party content providers that the OSP itself has placed on its Web site. In fact, on several occasions, America Online (AOL) has been subject to suits involving postings by users as well as content partners.

An OSP has several lines of defense against defamation-related claims arising from the postings of third parties. First, the OSP can include language in its general terms of service (and require every user to assent to such terms) indemnifying the OSP for claims arising from uses of its services. Second, the OSP can provide special terms of service for users of its interactive services, such as its message boards and chat services, that set out appropriate uses and specifically indemnify the OSP for claims arising out of user postings. AOL and other major OSPs have both of these types of terms of service.(9)

Perhaps more importantly, OSPs have defended against such defamation claims based on a mix of federal statutory and state common law grounds. Prodigy argued successfully in Lunney that it was merely a "conduit" of the allegedly defamatory content and, as such, should not be treated as a publisher of that content under state common law principles applied to telephone companies.(10) More commonly, however, OSPs have relied on the federal statutory immunity created by section 230 of the Communications Act(11) for protection from defamation suits.(12) Section 230, as interpreted by courts over the last four years, provides an OSP with broad immunity from liability for harms arising from third-party content that is made available through the OSP's services. Such immunity clearly covers defamation-related claims arising from the postings of third-party users of these services.(13) As discussed below, some courts have recently held that section 230 provides immunity from any tort claim that would make online providers liable for information originating with a third-party, including users and commercial partners.(14)

This Article presents a brief overview of common law principles of defamation. It then provides background on the enactment of section 230 and describes how state and federal courts interpret section 230 as well as the implications of those interpretations. …