Do any of your clients have websites? Social media accounts? What about online marketplaces? If your law practice works with corporations, intellectual property, brand or reputation management, startups, or any form of digital media, knowing the basics about liability for third-party content can greatly improve your ability to manage your clients’ exposure to litigation.
Much of the Internet is shaped by Section 230 of the Communications Decency Act of 1996. This piece of legislation recently made headlines and has ignited political debates. Hopefully, this article can help cut through some of the political posturing and help you better understand the law and effectively use it to assist your clients in risk management.
Here is the relevant language: “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.”
Section 230, in short, is the following: if the content on your client’s website is created by someone else, your client generally cannot be sued for simply hosting it on their website. There is still liability attached to content posted online – but said liability is on the creator or poster of the content. In practice, this means that if Alex posts a note to his Facebook that defames Barry, we hold Alex liable for damages and do not extend that liability to Facebook. Imagine, for a moment, how Facebook might look if every single post opened the site up to untold damages. This extends to every website that hosts third-party content. In this way, Section 230 is what gives the Internet the ability to host, share, and facilitate communication.
There are many misconceptions about Section 230. For example, two buzzwords that inevitably arise are ‘platform’ and ‘publisher,’ with the misguided notion that the role of the website is what determines whether or not Section 230 protections apply. These are important terms in the discussion, but semantics often confuse the issue. Section 230 protection is not about the host site, but rather the content at issue: the liability rests on the content creator. Similarly, websites do not ‘lose’ protections in full. In a notable case brought against Roomates.com, the court held that Roomates.com was not liable for some content – created by others – but still found it liable for content that it had created. Thus, Section 230 is not an all-or-nothing blanket.
Further, there are misunderstandings about moderation and liability. Section 230 was implemented, in part, to actually encourage moderation and ensure that platforms could moderate in good faith without bringing liability upon themselves with their moderation decisions. Courts have held that minor edits and decisions to include, encourage, or remove content do not incur liability.
Let’s focus, though, on how this will affect your clients. First, this information affects any client with an online presence – from a major platform to a simple website. The two most important things to consider are a) litigation costs and b) what Section 230 doesn’t cover. If your client is sued over content that is protected by Section 230, they are likely to win (if the content is truly third-party content) – but the costs of getting to that winning stage can potentially be staggering. The best way for clients to utilize Section 230’s moderation protections and proactively avoid litigation, is to engage in vigilant moderation, clearly outline their moderation policies, and follow them. It is important to note that Section 230 only matters where there is a cause of action against a plaintiff. Violations of federal criminal law are not shielded by Section 230. The law does not protect against claims of copyright infringement, so DMCA claims, takedowns, etc., are not affected in any way.
There is no doubt that debates over Internet censorship, content moderation, and legal liability will continue to intensify as political tensions come to a head in online spaces – but these debates will be possible because of the protections provided by Section 230.
About the Author
Zachary Gorelick is a UNC Law 3L (Media Law JD/MA Candidate) and can be reached at email@example.com.