Internet Defamation / Slander / Libel
The Communications Decency Act of 1996 is a landmark piece of Internet legislation in the United States that provides immunity from liability for websites of an "interactive computer service" who publish information provided by others.
In Many Cases, But Not All, The Website Is Immune From Prosecution for DefamationSection 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States, codified at 47 U.S.C. * 230. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others:
"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."
In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:
1) The defendant must be a "provider or user" of an "interactive computer service."
2) The cause of action asserted by the plaintiff must treat the defendant as the "publisher or speaker" of the harmful information at issue.
3) The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.
LimitationsSection 230 immunity is not unlimited. The statute specifically excepts: 1.) federal criminal liability and 2.) intellectual property claims. However, state criminal laws have been held preempted in cases such as Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1262 (W.D. Wash. 2012) and Voicenet Commc'ns, Inc. v. Corbett, 2006 WL 2506318, at *4 (E.D.Pa. Aug. 30, 2006) (agreeing "[T]he plain language of the CDA provides ... immunity from inconsistent state criminal laws.").
As of mid-2016, courts have issued conflicting decisions regarding the scope of the intellectual property exclusion set forth in 47 U.S.C. * 230(e)(2). For example, in Perfect 10, Inc. v. CCBill LLC, the 9th Circuit Court of Appeals ruled that the exception for intellectual property law applies only to federal intellectual property claims such as copyright infringement, trademark infringement, and patents, reversing a district court ruling that the exception applies to state-law right of publicity claims. The 9th Circuit's decision in Perfect 10 conflicts with conclusions from other courts including Doe v. Friendfinder. The Friendfinder court specifically discussed and rejected the lower court's reading of "intellectual property law" in CCBill and held that the immunity does not reach state right of publicity claims.
Not Necessarily Complete ImmunitySection 230 has been controversial because several courts have interpreted it as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. Zeran v. AOL, a 1997 4th Circuit decision, which held that Section 230 *creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.* This rule effectively protects online entities, including user-generated content websites, that qualify as a "provider or user" of an "interactive computer service."
Secton 230 has recently been applied to dismiss a lawsuit that was filed by victims sex-trafficking against Backpage for allowing advertisements with sex-trafficking content to remain on the website. The First Circuit affirmed a lower court decision that granted Backpage*s motion to dismiss under Section 230 immunity. In August 2017, Congress proposed a bill called the Stop Enabling Sex Traffickers Act to amend Section 230.
Allows Victims To Fight Online Sex TraffickingAllow States and Victims to Fight Online Sex Trafficking Act (FOSTA) is a bill introduced in the U.S. House of Representative by Ann Wagner in April 2017. Stop Enabling Sex Traffickers Act (SESTA) is a similar U.S. Senate bill introduced by Rob Portman in August 2017. The combined FOSTA-SESTA package passed the House on February 27, 2018 with a vote of 388-25 and the Senate on March 21, 2018 with a vote of 97-2. The bill was signed into law by President Donald Trump on April 11, 2018.
The bill clarifies the country's sex trafficking law to make it illegal to knowingly assist, facilitate, or support sex trafficking, and amends the Section 230 safe harbors of the Communications Decency Act (which make online services immune from civil liability for the actions of their users) to exclude enforcement of federal or state sex trafficking laws from its immunity. The intent is to provide serious, legal consequences for websites that profit from sex trafficking and give prosecutors tools they need to protect their communities and give victims a pathway to justice.
The bills were criticized by pro-free speech and pro-Internet groups as a "disguised internet censorship bill" that weakens the section 230 safe harbors, places unnecessary burdens on internet companies and intermediaries that handle user-generated content or communications with service providers required to proactively take action against sex trafficking activities, and requiring a "team of lawyers" to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies). Online sex workers argued that the bill would harm their safety, as the platforms they utilize for offering and discussing sexual services (as an alternative to street prostitution) had begun to reduce their services or shut down entirely due to the threat of liability under the bill.
Can Still Sue IndividualsWhile websites are protected pursuant Section of 230 does not apply to the users who post defamatory statements, Internet Harassment and/or stalking.