Contributions by consumer advocates, legal professionals, and industry insiders
A Level of Legal Protection in Cyberspace: Section 230 and Free Speech
Every website is a content generator. Today, businesses that once only sold consumer
products or services also engage in some of the same behaviors that so-called “media”
A website functions under the same risk of liability as newspapers, magazines, book
publishers, filmmakers or broadcasters, or any other content generator. These traditional
entities operate under the specter of tort liability for defamation, invasion of
privacy, or other torts related to publication.
Generating original content, whether actual news or information, fiction, or commentary,
poses many potential concerns. Add to that mix the facility of websites to allow
for interactivity and the Brave New World of the internet could keep content managers
awake 24/7 worrying that their site might post something that could end up in litigation.
This is certainly a concern regardless of the online operation.
However, Congress provided a silver lining for this concern: legal immunity under
a section of the Communications Decency Act of 1996 (CDA). Commonly known by its
section number 230, Congress passed this section of the law to provide immunity
from both federal and tort liability for “interactive computer services” that allow
for user-generated content.
Section 230 immunity is an interesting and important area of law that is vested
in a legislative public policy question.
In its practical application, Section 230 means that many types of websites that
rely on users or members having unfettered access to the internet cannot be held
liable for content that their users post. For example, posting a potentially defamatory
statement on Facebook or Twitter would not mean a potential plaintiff would have
a case against Facebook or Twitter. Whoever posted the defamatory statement would
be the responsible party, no matter how many millions of users viewed or read the
The questions surrounding Section 230 make important legal distinctions between
distributors and publishers. In other words, who controls the content bears the
risk for liability. The analogy would be similar to suing a bookstore because it
sold a book with a defamatory passage. A court would have little difficulty dismissing
that lawsuit because the bookstore had no role in developing the content, it simply
sold the book.
Courts around the country – both state and federal – have had to make determinations
on liability and immunity under Section 230. And, the internet has provided an abundance
of cases testing our taste and tolerance for a variety of offensive and potentially
illegal speech. This immunity is often difficult for outsiders to wrap their minds
It is important to note, however, that an entity that creates its own content, even
if it is disseminated online, is still responsible for that. All Section 230 does
is immunize certain types of websites and computer systems from content others post.
One of the first and perhaps most notorious cases testing the new standards for
online speech and Section 230 involved America Online (AOL) back in 1997.
In the case, Zeran v. AOL, the plaintiff sought to hold AOL liable for false and
offensive content posted about him by a third party on an AOL message board. In
this case, a federal circuit court of appeals eventually refused to attach liability
to AOL for the comments because of the law. Ultimately, the plaintiff was unable
to hold the internet service provider liable because the courts found AOL should
have immunity under Section 230.
In some ways, it seemed unfair to the plaintiff. But the court’s analysis shed a
little light on the underlying policy: “The purpose of this statutory immunity is
not difficult to discern. Congress recognized the threat that tort-based lawsuits
pose to freedom of speech in the new and burgeoning internet medium. The imposition
of tort liability on service providers for the communications of others represented,
for Congress, simply another form of intrusive government regulation of speech.”
The broader picture, however, requires laws to find some middle ground to balance
the needs and interests of all parties. There are hundreds of court opinions testing
the limits of Section 230 immunity. Almost always, the courts find for the defendants.
In other cases, a range of social media websites, consumer review and gripe sites,
online dating and other types of websites have been granted immunity under Section
230. Even eBay and Craigslist have also been immunized under the law.
To determine if Section 230 immunity is an appropriate defense, courts generally
look to three factors:
- Is the defendant an interactive computer service?
- Is the plaintiff attempting to hold the defendant liable as a publisher or speaker?
- Does the lawsuit arise from content posted by a third party?
After analyzing and applying these three factors, a court will generally determine
that the website has immunity and should not be a defendant, often dismissing the
So, in the seemingly lawless world of cyberspace there are actually some rules and
About the author
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