If you are a website owner, you probably wonder whether you may be sued for content, like comments, photographs, or videos posted on your website by third parties. Section 230 of the Communications Decency Act (CDA) may offer you some relief.
Immunity under the CDA
The CDA is a federal law enacted by Congress to promote the flow and free sharing of information over the internet. It offers “interactive computer services” providers, otherwise known as website owners, immunity from claims resulting from third party posting on their site. These claims may include defamation, tortious interference with contracts, and breach of contract actions. This immunity is bestowed upon a website owner as long as the owner does not act as an “information content provider” in regards to the third party posting.
The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” The U.S. District Court for the Eastern District of Kentucky, located in the Sixth Circuit (which includes Ohio), has held that a website owner becomes an “information content provider,” and therefore loses immunity under the CDA, when that owner “specifically encourages the development of what is offensive about the content.”
Best Practices for Website Owners
Website owners should pay close attention to this test as they work with third party postings on their websites. The more a website provider screens, edits, modifies, and contributes to third party postings, the more likely it is that they will lose immunity under the CDA. However, minor edits and modifications, especially if done to make the content less offensive, are unlikely to cause a website to lose immunity.
For example, a website that screens third party postings for the “best” content, adds its own taglines to those postings, fails to verify the accuracy of the postings, and adds its own comments or content to the postings is likely going to lose its immunity under the CDA because it has moved from acting as an “interactive computer services” provider to acting as a “information content provider” by becoming “responsible, in whole or in part, for the creation or development of information…” If the posting is found to contain false statements of fact and damage the reputation of a person, the website may be held liable for defamation.
As a best practice, any website that accepts third party content should have a policy in place that ensures it is not acting like an “information content provider.” If this policy is followed, a website owner should have immunity against any defamation, tortious interference with contracts, and breach of contract actions brought against it as a result of a third party posting on the site. Note: the CDA does not offer website owners immunity against federal intellectual property claims. However, other laws, like the Digital Millennium Copyright Act, may offer such protection if the provisions of that law are followed. If you have questions about your website, contact one of our attorneys for a free consultation.