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Online Service Provider Liability

The issue of online service provider liability comes up often in today’s high-tech world. In order to promote free discussion and private investment in the Internet, the United States Congress immunized providers of “interactive computer service[s]” against liability arising out of content provided for publication by any other “information content provider.” See Section 230 of the Communications Decency Act of 1996, 47 U.S.C. § 230. This section does not limit the application of intellectual property laws or criminal laws, but it protects Internet service providers and website operators against a broad range of tort, contract, and other claims arising out of content created by third parties.

Section 230(c)(2)(A) states that “[n]o provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Section 230(c)(2)(B), provides immunity for “any action taken to enable or make available to information content providers or others the technical means to restrict access to [such material].” The immunity offered under Section 230(c)(2) is also referred to as the “Good Samaritan” protection.

Generally, most courts have applied the protection of Section 230 broadly, ruling that ISPs (e.g., AT&T, TimeWarner, AOL) and those operating websites enjoy immunity from liability. Stated otherwise, as long as the material complained of was written by a third party, rather than an agent or employee of the ISP or website, the ISP or website is immune from liability. In addition, the operator of a website may choose to exercise control over the content of its site by removing or editing content provided by third parties without becoming liable as the “publisher” of the third-party statements.

In 1998, the U.S. Court of Appeals for the Fourth Circuit held that even if a publisher or website is put on notice that it is distributing a libelous statement posted by a third party, it cannot be held liable for failure to remove the statement. The court also held that the scope of Section 230 extends to “any cause of action that would make service providers liable for information originating with a third-party user of the service.” See Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998).