Communications Decency Act

The Communications Decency Act (CDA) was Title V of the United States' Telecommunications Act of 1996. It was introduced to the Senate Committee on Commerce, Science, and Transportation by senators James Exon (D-NE) and Slade Gorton (R-WA) in 1995 in response to fears that Internet pornography was on the rise. Indecency in (ground wave) TV and radio broadcasting had already been regulated by the Federal Communications Commission - broadcasting of offensive speech was restricted to certain hours of the day, when minors were supposedly least likely to be exposed. Violators (broadcasters) could be fined and potentially lose their licenses. The Internet, however, had only recently been opened to commercial interests by the 1992 amendment to the National Science Foundation Act and thus was not considered by many previous laws. The CDA, which affected the Internet and cable television, marked the first attempt to expand regulation to this new sphere.

Section 230

Section 230 of the act added valuable protection for online service providers and users from action against them for the actions of others, stating in part that "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". This portion of the Act remains in force, and enhances free speech by making it unnecessary for ISPs and other service providers to unduly restrict customers' actions for fear of being found legally liable for customers' conduct. The 1995 decision in Stratton Oakmont, Inc. v. Prodigy Services Co. tended to have that effect.

Related Topics:
1995 - Stratton Oakmont, Inc. v. Prodigy Services Co.

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It is controversial because several courts have interpreted it as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. See, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998), which held that Section 230 ?creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.?

Related Topics:
Tort - Zeran v. AOL

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Courts across the country have upheld Section 230 immunity in a variety of factual contexts. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing email sent to listserv); Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003) (Internet dating service provider was entitled to Section 230 immunity from liability stemming from third party's submission of false profile); Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information); Blumenthal v. Drudge, 982 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for the content of an independent contractor's news reports, despite agreement with the contractor allowing AOL to modify or remove such content); Gentry v. eBay, Inc., 99 Cal.App.4th 816, 830 (2002) (Section 230 ?immunizes providers of interactive computer services ... and their users from causes of action asserted by persons alleging harm caused by content provided by a third party.?); Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 692 (2001) (city immune under § 230 from liability for public library's providing computers allowing access to pornography); Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) (§ 230 immunizes AOL for negligence).

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Immunity under Section 230 requires that: (1) the defendant is a provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue be provided by another information content provider.

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This rule effectively protects online forums but has been criticised for leaving victims with no hope of relief where the true tortfeasors cannot be identified or are judgment-proof.

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Section 230's coverage is not complete: it excepts federal criminal liability and intellectual property law. 47 U.S.C. §§ 230(e)(1) (criminal) and (e)(2) (intellectual property); see also Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001) (no immunity for contributory liability for trademark infringement); Perfect 10, Inc. v CCBill LLC (No. CV 02-7624 LGB) (C.D. Cal. June 22, 2004) (state right of publicity claim is not covered by Section 230); cf. Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion).

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Cases relying on the CDA include:

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• Zeran v. AOL (1997)
• Carafano v. Metrosplash.com (2003) (the Star Trek actress case)