I get calls from people who are exasperated about information posted about them online. They are frustrated and want to know if they have a defamation case. The answer is usually no. The reason is section 230 of the Communications Decency Act which provides Section 230(c)(1) provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third parties. In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. Each of the three prongs to gain the benefit of the immunity:
- The defendant must be a “provider or user” of an “interactive computer service.” This means internet service providers and social media websites.
- The cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue.
- The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.
Section 230 acts as significant hurdle to plaintiffs suing a website or online service provider for online defamation. Why? Because the courts, based on Section 230, extend special protections to operators of online services; they cannot be held liable for remarks made by third parties even if the statements are false and damaging.
A recent study showed that more than 75% of online defamation cases were dismissed based on Section 230.
However, there are some ways to minimize the damage or get the information removed. There have been cases where a defendant once they are sued voluntarily removes the content. Sometimes the websites cease operations or in other cases the online provider or website settles with the plaintiff outside of court.
In a small number of cases a court has actually sided with the plaintiff and ordered a provider of online services to comply with certain court orders.
Of course, if the identity of the individual making the defamatory statements is determined, there is the potential to bring a claim directly against him or her.
What do others think about section 230 of the Communications Decency Act? Is it too broad? Way too broad? Is it just a license to be irresponsible? I welcome opinions and thoughts about this topic.