Magazine article Information Today

A Safe Harbor against Lawsuits

Magazine article Information Today

A Safe Harbor against Lawsuits

Article excerpt

Congress first attempted to regulate content on the Internet with the Communications Decency Act (CDA), which became well-known for its efforts to outlaw indecent and obscene speech online. The CDA was eventually challenged on the grounds that it infringed upon free speech, and that ruling was upheld by the U.S. Supreme Court in 1997.

While the Supreme Court declared most of the CDA unconstitutional, one surviving provision is getting more and more attention these days. This controversial provision, known as Section 230 (Safe Harbor) for its original section noted in CDA, provides legal protection to Internet content and service providers against lawsuits due to actions by their users. With the rise of Internet forums, blogs, podcasts, and other sites that rely on user- or subscriber-provided content, Section 230 has moved back into public scrutiny.

Initially, Section 230 was viewed as a necessary step: It ensured access to a full range of content by providing Internet service companies with immunity from the actions of their users. Providers could not be sued even if the content they hosted violated the law. The intent of Section 230 was to enhance free speech and access to the Internet by protecting providers from acts that they have little or no control over.

Internet Service Providers

Early court decisions generally applied Section 230 to Internet service providers (ISPs). In 1997, AOL was protected from a defamation lawsuit based on a prank posting by an AOL user who targeted a non-AOL user. AOL was notified of the prank and took steps to remove the posting, but the victim had already suffered the effects. When the victim sued AOL, the court held that Section 230 eliminated AOL from liability to the victim. Other cases protected ISPs from copyright infringement claims and being liable for posting incorrect stock information and obscene content.

Since then, Section 230 has been expanded to include Internet content providers such as forum hosts, blogs, wikis, consumer ratings Web sites, and others. Section 230 protects operators from legal responsibility for the actions of their users.

The circumstances are usually similar to the AOL case: A Web site user or subscriber provides content that insults, defames, or infringes upon the rights of another person. This content is often posted anonymously so the victim cannot identify the person who posted it. However, the Web site's owner can be identified, and the owner can be sued for damages. But under Section 230, the owner is not legally liable for the posting; the victim cannot recover any damages from the owner.

The Anonymous Poster

The courts in the AOL and subsequent cases have clearly stated that nothing in Section 230 prevents victims from suing the person who originally posted the content, and many victims have taken this step. Unfortunately, it is often difficult to identify anonymous posters, and Web site owners often are unable or unwilling to help identify them. However, they can be identified through a "John Doe" lawsuit, which is similar to the lawsuits used by the music industry to identify downloaders. But these actions can be very expensive--there's no guarantee that the person who posted the questionable material can be identified. …

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