Academic journal article Harvard Law Review

Badging: Section 230 Immunity in a Web 2.0 World

Academic journal article Harvard Law Review

Badging: Section 230 Immunity in a Web 2.0 World

Article excerpt

The drafters of [section] 230 of the Communications Decency Act (1) (CDA) aimed to encourage the growth of free speech online while also giving site operators an incentive to edit and self-police by granting those owners immunity from liability for content posted by nonowner users, even when the owners attempt to monitor their sites for harmful content. (2) In the four-teen years since the enactment of the CDA, the immunity provision has been critical to the development of free, open speech online. But there are serious questions about how [section] 230 immunity should apply to today's more interactive websites, often called Web 2.0. (3) Concerns about whether [section] 230 will apply to Web 2.0 sites (and whether it should) have increased in the wake of the Ninth Circuit's recent decision in Fair Housing Council of San Fernando Valley v., LLC, (4) which put a partial stop to a chain of court decisions expanding the application of [section] 230. This Note extends this discussion to the specific issue of [section] 230 immunity for Web 2.0 sites that "badge" certain users with a symbol of a special status. (5)

The concept of Web 2.0 is "a bit of a muddle." (6) One element is the emergence of a more interactive internet, where the line between user and contributor is blurred or nonexistent and sites have "embraced the power of the web to harness collective intelligence." (7) It is the internet of blogs, of wikis, of user-generated reviews and information. In a world where everyone can participate, users need some way of sorting all of the information that is produced, a way to determine both what information is relevant and what is credible. (8) One way websites accomplish this task is through the "badging" of users, the use of a symbol or word to distinguish people as trusted, experienced members of the community or as administrators of the site. (9)

This Note examines two badge-related problems. First, for badges that indicate a poster's quality, it examines the possibility of a site being sued for negligent misrepresentation. Second, for badges that indicate adminis- trative rights, it examines the possibility of a site being sued for posts made by administrative users in a nonadministrative capacity. Since [section] 230's goal is to encourage self-editing and internet free speech, the section should continue to be interpreted broadly, and mere badging of a user should not deprive an interactive computer service provider of immunity for most user torts. In particular, site owners should be protected from liability for the torts of users whom, with regard to badges indicating quality, the site owner did not select, or of users who, with regard to administrative badges, were not acting within the scope of their employment.

Part I examines the history of [section] 230, specifically Congress's intent to encourage free speech online and to encourage interactive computer services and users to self-police, as well as scholars' and courts' reactions to the provision. Part II discusses the application of [section] 230 in a Web 2.0 world and the use of badges. Part III examines the two above-mentioned badge-related problems and suggests that they should be resolved by restricting the (10) holding to its facts and continuing the earlier trend of broad interpretation of [section] 230. Part IV briefly concludes.


A. The Purpose and History of [section] 230

In enacting the CDA, (11) Congress created [section] 230 explicitly "to encourage the unfettered and unregulated development of free speech on the Internet, ... promote the development of e-commerce," (12) and "encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material, so as to aid parents in limiting their children's access to such material." (13) Under the section's immunity provision, also known as its "Good Samaritan" section, "[n]o provider or user of an interactive computer service [is] treated as the publisher or speaker of any information provided by another information content provider. …

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