Internet service providers (ISPs) like to believe that in Section 230 of the Communications Decency Act (CDA) Congress afforded them broad immunity from any liability potentially caused by third-party content posted on ISP sites. But how secure is that immunity? Let’s explore a few important cases to explore the answer to that question.

Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), was an early case to address the scope of immunity provided to ISPs by CDA Section 230. In that case, an anonymous poster urged the public to call Kenneth Zeran to buy goods displaying disgusting expressions of celebration of the 1995 Oklahoma City federal building bombing.

These anonymous posts contained Zeran’s name and phone number. As a result of the posts, a radio broadcaster condemned Zeran on the air. In the wake of that broadcast, Zeran was inundated with threats, including death threats.

Zeran filed suit against AOL, claiming that AOL had been negligent in not removing the inflammatory posts and for allowing the poster to place for negative statements on AOL bulletin boards, including after AOL was given notice of the continuing tortious conduct.

AOL defended, relying upon CDA Section 230 immunity. The Fourth Circuit agreed that AOL was immune, and this case seemed to establish that ISPs have no duty to take down inflammatory information posted by third parties (in contrast to take down obligations relating to copyrighted works under the Digital Millennium Copyright Act).

The trend toward broad ISP immunity under Section 230 continued strongly in Blumenthal v. America Online, 992 F.Supp. 44 (D.D.C. 1998). In that case, Matt Drudge posted an inaccurate report on AOL that an aide to President Clinton had been guilty of spousal abuse. The report later was retracted by Drudge and AOL posted the retraction.

The aide nevertheless filed suit and argued that AOL should be liable for defamation, even though AOL is an ISP. The argument was that because Drudge received monthly royalty payments from AOL for his columns, and because AOL contractually was entitled to edit and even remove content from these columns, AOL functioned more like a publisher, and thus should not be shielded in this instance by CDA Section 230.

The court rejected this argument and conferred Section 230 immunity. This represents a further potential expansion of Section 230 immunity into contexts where an ISP is involved in content editing.

Fast-forward ten years to Fair Housing Council of the San Fernando Valley v., 521 F.3d 1157 (9th Cir. 2008). Sitting en banc, the Ninth Circuit held that CDA Section 230 did not provide immunity to a roommate-matching site with respect to content to be posted by third parties on that site. Why?

The Ninth Circuit reasoned that immunity was inappropriate because the site required its users to answer certain questions — the answers to which could be discriminatory on issues such as race, age and sexual orientation — preferences for possible roommates. Because of this, the Ninth Circuit viewed the site as a content provider, not just a site where third parties post content.

The decision was sobering for ISPs. While the case law generally has been favorable in providing immunity to ISPs under CDA Section 230, the case teaches that not all judges are enamored by immunity in all contexts for ISPs; accordingly, ISPs would be smart to distance themselves as much as possible from the role of content creator in their involvement with third parties who post on their sites.

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