Section 230 in Action

Recent discussions on this blog regarding protections under Section 230 of the Communications Decency Act make it nearly obligatory to mention the California court case that, happily, adds weight to the argument that simply transporting another's words doesn't automatically create liability. In January of 2004, a California appeals court refused to dismiss a defamation suit that involved republishing someone else's words on the Internet—posting another's e-mail to a newsgroup in this case—effectively removing exactly the sort of protection that Section 230 provides. A week ago today, the California Supreme Court reversed the decision of the lower court, thereby supporting and strengthening existing precedent concerning legal immunity for transmitting—but not creating—defamatory content.

Quoting a November 20 news release on the Electronic Frontier Foundation's site, the action upholds what other courts, including the Supreme Court, have already established.

Today's ruling affirms that blogs, websites, listservs, and ISPs like Yahoo!, as well as individuals like defendant Ilena Rosenthal, are protected under Section 230 of the federal Communications Decency Act (CDA), which explicitly states that "[n]o 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."

For anyone in the business of blogging, this reaffirmation is particularly welcome. But it may be worthwhile to mention, again, that Section 230 protection extends beyond situations involving defamation, as the EFF's Bloggers' FAQ - Section 230 Protections makes clear.

Is Section 230 limited to defamation?

No. It has been used to protect intermediaries against claims of negligent misrepresentation, interference with business expectancy, breach of contract, intentional nuisance, violations of federal civil rights, and emotional distress. It protected against a state cause of action for violating a statute that forbids dealers in autographed sports items from misrepresenting those items as authentically autographed. It extends to unfair competition laws. It protected a library from being held liable for misuse of public funds, nuisance, and premises liability for providing computers allowing access to pornography.

The Electronic Frontier Foundation also maintains—among many other things—an archive of some key Section 230 cases, which is well worth exploring as an aid to anticipating future rulings.

Also worth repeating, possibly, is the distinction between words you create, and words you change. It seems obvious that altering the intent of someone else's words is the equivalent of a lie, but if the EFF sees fit to address the issue in their Bloggers' FAQ - Section 230 Protections, there's probably a good reason for it.

The courts have not clarified the line between acceptable editing and the point at which you become the "information content provider." To the extent that your edits or comment change the meaning of the information, and the new meaning is defamatory, you may lose the protection of Section 230.

In any event, last week's court ruling can only help the cause of free speech on the Internet. As EFF Staff Attorney Kurt Opsahl put it, "By reversing the Court of Appeal, the California Supreme Court has brought California back in line with other jurisdictions and reaffirmed the critical rule that the soapbox is not liable for what the speaker has said."