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Volumn 33, Issue 2, 2010, Pages 863-883

An interpretive framework for narrower immunity under section 230 of the communications decency act

(1)  Dickinson, Gregory M a  

a NONE

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EID: 78049286902     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article
Times cited : (6)

References (124)
  • 1
    • 78049320279 scopus 로고    scopus 로고
    • Pub. L. No. 104-104, 110 Stat. 133 (1996)
    • Pub. L. No. 104-104, 110 Stat. 133 (1996).
  • 2
    • 78049293714 scopus 로고    scopus 로고
    • 129 F.3d 327, 330-31 4th Cir. (reviewing the congressional intent behind Section 230)
    • See Zeran v. AOL, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) (reviewing the congressional intent behind Section 230).
    • (1997) Zeran V. AOL, Inc.
  • 3
    • 78049313149 scopus 로고    scopus 로고
    • See 47 U.S.C. §230(b) (2006) ("It is the policy of the United States... to remove disincentives for the development and utilization of blocking and filtering technologies....")
    • See 47 U.S.C. §230(b) (2006) ("It is the policy of the United States... to remove disincentives for the development and utilization of blocking and filtering technologies....");
  • 4
    • 78049264800 scopus 로고    scopus 로고
    • Zeran, 129 F.3d at 331 ("Another important purpose of §230 was to encourage service providers to self-regulate the dissemination of offensive material over their services.")
    • Zeran, 129 F.3d at 331 ("Another important purpose of §230 was to encourage service providers to self-regulate the dissemination of offensive material over their services.");
  • 5
    • 78049255788 scopus 로고    scopus 로고
    • CONG. REC. 15,503 (1995) (statement of Sen. Exon) ("[T]he worst, most vile, most perverse pornography is only a few clickclick-clicks away from any child on the Internet.")
    • CONG. REC. 15,503 (1995) (statement of Sen. Exon) ("[T]he worst, most vile, most perverse pornography is only a few clickclick-clicks away from any child on the Internet.").
  • 6
    • 78049277847 scopus 로고    scopus 로고
    • See 47 U.S.C. §230(a)(3) (2006) ("The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.")
    • See 47 U.S.C. §230(a)(3) (2006) ("The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.");
  • 7
    • 78049309867 scopus 로고    scopus 로고
    • Zeran, 129 F.3d at 330 ("Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.")
    • Zeran, 129 F.3d at 330 ("Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.").
  • 8
    • 78049276269 scopus 로고    scopus 로고
    • 47 U.S.C. §230(c), (f)(3) (2006)
    • 47 U.S.C. §230(c), (f)(3) (2006).
  • 9
    • 78049281402 scopus 로고    scopus 로고
    • As mere hosts of content created by others, blog-hosting sites are immune from defamation liability under a straightforward application of Section 230. For a thoughtful discussion of the slightly more difficult question of the applicability of Section 230 immunity to Wikipedia
    • As mere hosts of content created by others, blog-hosting sites are immune from defamation liability under a straightforward application of Section 230. For a thoughtful discussion of the slightly more difficult question of the applicability of Section 230 immunity to Wikipedia,
  • 10
    • 77951583915 scopus 로고    scopus 로고
    • Wikimmunity: Fitting the communications decency act to wikipedia
    • see Ken S. Myers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 HARV. J.L. & TECH. 163 (2006).
    • (2006) Harv. J.L. & Tech. , vol.20 , pp. 163
    • Myers, K.S.1
  • 11
    • 78049241968 scopus 로고    scopus 로고
    • No. 31063/94,1995 WL 323710 (N.Y. Sup. Ct. May 24,1995)
    • No. 31063/94,1995 WL 323710 (N.Y. Sup. Ct. May 24,1995).
  • 12
    • 0008381224 scopus 로고    scopus 로고
    • Distributors, such as libraries, bookstores, and telephone companies, who "deliver, transmit, or facilitate defamation [but] have only the most attenuated or mechanical connection with the defamatory content" are not liable "unless [they] know[] or should know of the defamatory content." Publishers and republishes, such as book presses and newspapers, on the other hand, are responsible for all harms caused by their defamatory publications
    • Distributors, such as libraries, bookstores, and telephone companies, who "deliver, transmit, or facilitate defamation [but] have only the most attenuated or mechanical connection with the defamatory content" are not liable "unless [they] know[] or should know of the defamatory content." Publishers and republishes, such as book presses and newspapers, on the other hand, are responsible for all harms caused by their defamatory publications. DAN B. DOBBS, THE LAW OF TORTS § 402 (2000).
    • (2000) The Law of Torts § , pp. 402
    • Dobbs, D.B.1
  • 13
    • 78049259131 scopus 로고    scopus 로고
    • 1995 WL 323710, at *4.
    • 1995 WL 323710, at *4.
  • 14
    • 78049261910 scopus 로고    scopus 로고
    • See 47 U.S.C. §230(c)(2) (2006)
    • See 47 U.S.C. §230(c)(2) (2006).
  • 15
    • 79959925408 scopus 로고    scopus 로고
    • Rationdizing internet safe harbors
    • 103 ("[Section 230] has been interpreted quite broadly to apply to any form of Internet intermediary, including employers or other companies who are not in the business of providing Internet access and even to individuals who post the content of another. And it has been uniformly held to create absolute immunity from liability for anyone who is not the author of the disputed content, even after they are made aware of the illegality of the posted material and even if they fail or refuse to remove it." (footnotes omitted))
    • See Mark A. Lemley, Rationdizing Internet Safe Harbors, 6 J. TELECOMM. & HIGH TECH. L. 101, 103 (2007) ("[Section 230] has been interpreted quite broadly to apply to any form of Internet intermediary, including employers or other companies who are not in the business of providing Internet access and even to individuals who post the content of another. And it has been uniformly held to create absolute immunity from liability for anyone who is not the author of the disputed content, even after they are made aware of the illegality of the posted material and even if they fail or refuse to remove it." (footnotes omitted)).
    • (2007) J. Telecomm. & High Tech. L. , vol.6 , pp. 101
    • Lemley, M.A.1
  • 16
    • 78049280961 scopus 로고    scopus 로고
    • 129 F.3d 327 (4th Cir. 1997).
    • 129 F.3d 327 (4th Cir. 1997).
  • 17
    • 78049308913 scopus 로고    scopus 로고
    • See id. at 330 ("[L]awsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred."). The plaintiff in Zeran alleged that America Online had unreasonably delayed in retracting defamatory messages posted by a third party, refused to post retractions to those messages, and failed to screen for and prevent similar future postings.
    • See id. at 330 ("[L]awsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred."). The plaintiff in Zeran alleged that America Online had unreasonably delayed in retracting defamatory messages posted by a third party, refused to post retractions to those messages, and failed to screen for and prevent similar future postings.
  • 18
    • 78049235115 scopus 로고    scopus 로고
    • Id. at 328. The court rejected these arguments, interpreting the text of Section 230 to preclude liability even where a service provider is on notice of and in a position to prevent or remove potentially defamatory content. The entire inquiry turned on the identity of the content's author
    • Id. at 328. The court rejected these arguments, interpreting the text of Section 230 to preclude liability even where a service provider is on notice of and in a position to prevent or remove potentially defamatory content. The entire inquiry turned on the identity of the content's author.
  • 19
    • 78049290842 scopus 로고    scopus 로고
    • Id. at 330-32 ("By its plain language, §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.").
    • Id. at 330-32 ("By its plain language, §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.").
  • 20
    • 77951970731 scopus 로고    scopus 로고
    • In defense of online intermediary immunity: Facilitating communities of modified exceptionalism
    • For a useful table of cases illustrating the expanding scope of Section 230 immunity, see Myers, supra note 6, at 205-08. See also 374 ("Following Zeran, and building on that court's reading of both the statute and the policies sought to be effected, courts have consistently extended the reach of §230 immunity along three lines: (1) by expanding the class who may claim its protections; (2) by limiting the class statutorily excluded from its protections; and (3) by expanding the causes of action from which immunity is provided.");
    • For a useful table of cases illustrating the expanding scope of Section 230 immunity, see Myers, supra note 6, at 205-08. See also H. Brian Holland, In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, 56 U. KAN. L. REV. 369, 374 (2008) ("Following Zeran, and building on that court's reading of both the statute and the policies sought to be effected, courts have consistently extended the reach of §230 immunity along three lines: (1) by expanding the class who may claim its protections; (2) by limiting the class statutorily excluded from its protections; and (3) by expanding the causes of action from which immunity is provided.");
    • (2008) U. Kan. L. Rev. , vol.56 , pp. 369
    • Brian Holland, H.1
  • 21
    • 78049260045 scopus 로고    scopus 로고
    • Comment, determining what constitutes creation or development of content under the communications decency act
    • 253-58 (individually discussing several cases in the "series of decisions that offered increasingly broader immunity for ISPs")
    • Brandy Jennifer Glad, Comment, Determining What Constitutes Creation or Development of Content Under the Communications Decency Act, 34 Sw. U. L. REV. 247, 253-58 (2004) (individually discussing several cases in the "series of decisions that offered increasingly broader immunity for ISPs").
    • (2004) Sw. U. L. Rev. , vol.34 , pp. 247
    • Glad, B.J.1
  • 22
    • 78049257792 scopus 로고    scopus 로고
    • 992 F. Supp. 44 (D.D.C. 1998)
    • 992 F. Supp. 44 (D.D.C. 1998).
  • 23
    • 78049283293 scopus 로고    scopus 로고
    • Id. at 47, 50.
    • Id. at 47, 50.
  • 25
    • 77951947024 scopus 로고    scopus 로고
    • 333 F.3d 1018, 1027 9th Cir.
    • Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003);
    • (2003) Batzel V. Smith
  • 26
    • 78049300019 scopus 로고    scopus 로고
    • 318 F.3d 465, 471 3d Cir
    • Green v. AOL, Inc., 318 F.3d 465, 471 (3d Cir. 2003);
    • (2003) Green V. AOL, Inc.
  • 28
    • 78049296964 scopus 로고    scopus 로고
    • Chi. Lawyers' Comm. 519 F.3d 666, 670 7th Cir. Judge Easterbrook reasons in Craigslist that other circuits have extended immunity too far by "treating § 230(c)(1) as a grant of comprehensive immunity from civil liability for content provided by a third party" and urges instead immunity only for publicationbased torts
    • But see Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008). Judge Easterbrook reasons in Craigslist that other circuits have extended immunity too far by "treating § 230(c)(1) as a grant of comprehensive immunity from civil liability for content provided by a third party" and urges instead immunity only for publicationbased torts.
    • (2008) Civil Rights under Law, Inc. V. Craigslist, Inc.
  • 29
    • 78049295568 scopus 로고    scopus 로고
    • Id. Because publication is not an element of copyright infringement, Judge Easterbrook's interpretation would allow, for example, computer service providers to be held liable for contributory copyright infringement if their systems were designed to help people steal music.
    • Id. Because publication is not an element of copyright infringement, Judge Easterbrook's interpretation would allow, for example, computer service providers to be held liable for contributory copyright infringement if their systems were designed to help people steal music.
  • 30
    • 78049277636 scopus 로고    scopus 로고
    • See Batzel, 333 F.3d at 1037 (Gould, J., concurring in part and dissenting in part)
    • See Batzel, 333 F.3d at 1037 (Gould, J., concurring in part and dissenting in part).
  • 31
    • 78049285758 scopus 로고    scopus 로고
    • 47 U.S.C. §230(c)(1) (2006)
    • 47 U.S.C. §230(c)(1) (2006).
  • 32
    • 78049258787 scopus 로고    scopus 로고
    • See Batzel, 333 F.3d at 1037.
    • See Batzel, 333 F.3d at 1037.
  • 33
    • 78049290369 scopus 로고    scopus 로고
    • Subsection (c)(2) reads: "No provider or user of an interactive computer service shall be held liable on account of-(A) any action voluntarily taken in good faith to restrict access to [objectionable content]." 47 U.S.C. §230(c)(2) (2006)
    • Subsection (c)(2) reads: "No provider or user of an interactive computer service shall be held liable on account of-(A) any action voluntarily taken in good faith to restrict access to [objectionable content]." 47 U.S.C. §230(c)(2) (2006).
  • 34
    • 18244394562 scopus 로고    scopus 로고
    • The rule against surplusage presumes that Congress does not include redundant or otherwise unnecessary language in statutes.
    • The rule against surplusage presumes that Congress does not include redundant or otherwise unnecessary language in statutes. WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 266 (2000);
    • (2000) Legislation and Statutory Interpretation , pp. 266
    • Eskridge Jr., W.N.1
  • 35
    • 78049244416 scopus 로고
    • 485 U.S. 759, 778 (calling it the "cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant").
    • see also Kungys v. United States, 485 U.S. 759, 778 (1988) (calling it the "cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant").
    • (1988) Kungys V. United States
  • 36
    • 78049255787 scopus 로고    scopus 로고
    • 347 F.3d 655, 660 7th Cir. (Easterbrook, J.)
    • Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003) (Easterbrook, J.).
    • (2003) Doe V. Gte Corp.
  • 37
    • 78049243433 scopus 로고    scopus 로고
    • See id. (noting that if the majority approach is correct, "then §230(c) as a whole makes ISPs indifferent to the content of information they host or transmit: whether they do (subsection (c)(2)) or do not (subsection (c)(1)) take precautions, there is no liability under either state or federal law" (emphasis added)).
    • See id. (noting that if the majority approach is correct, "then §230(c) as a whole makes ISPs indifferent to the content of information they host or transmit: whether they do (subsection (c)(2)) or do not (subsection (c)(1)) take precautions, there is no liability under either state or federal law" (emphasis added)).
  • 38
    • 77951972698 scopus 로고    scopus 로고
    • Fair Hous. LLC, 521 F.3d 1157, 1184 9th Cir. (searching dictionaries, case law, and the text of the statute for the "ordinary meaning" of "development")
    • See, e.g., Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1184 (9th Cir. 2008) (searching dictionaries, case law, and the text of the statute for the "ordinary meaning" of "development");
    • (2008) Council of San Fernando Valley V. Roommates.com
  • 39
    • 78049264799 scopus 로고    scopus 로고
    • Batzel, 333 F.3d at 1031 ("The 'development of information' therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication.")
    • Batzel, 333 F.3d at 1031 ("The 'development of information' therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication.");
  • 40
    • 78049236481 scopus 로고    scopus 로고
    • 206 F.3d 980, 984-86 10th Cir. (holding defendant not liable when plaintiff alleged defendant was acting as both computer service and content provider)
    • Ben Ezra, Weinstein & Co. v. AOL, Inc., 206 F.3d 980, 984-86 (10th Cir. 2000) (holding defendant not liable when plaintiff alleged defendant was acting as both computer service and content provider);
    • (2000) Ben Ezra, Weinstein & Co. V. AOL, Inc.
  • 41
    • 77951950324 scopus 로고    scopus 로고
    • 421 F. Supp. 2d 1257, 1262-63 N.D. Cal. (stating that even when Yahoo! did not create the online material, the CDA "[did] not absolve Yahoo! from liability for any accompanying misrepresentations" they made that the material was genuine)
    • Anthony v. Yahoo!, Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006) (stating that even when Yahoo! did not create the online material, the CDA "[did] not absolve Yahoo! from liability for any accompanying misrepresentations" they made that the material was genuine);
    • (2006) Anthony V. Yahoo!, Inc.
  • 42
    • 84899292902 scopus 로고    scopus 로고
    • L.L.C., No. Civ. A.3:02-CV-2727-G, WL 833595, at *8 (N.D. Tex. Apr. 19, 2004) ("The distinction between merely publishing information provided by a third-party as an interactive computer service and actually creating or developing any of the information posted as an information content provider is critical [and] determines whether the CDA provides immunity.");
    • MCW, Inc. v. Badbustaessbureau.com, L.L.C., No. Civ. A.3:02-CV-2727-G, 2004 WL 833595, at *8 (N.D. Tex. Apr. 19, 2004) ("The distinction between merely publishing information provided by a third-party as an interactive computer service and actually creating or developing any of the information posted as an information content provider is critical [and] determines whether the CDA provides immunity.");
    • (2004) MCW, Inc. V. Badbustaessbureau.com
  • 43
    • 78049245367 scopus 로고    scopus 로고
    • 207 F. Supp. 2d 1055,1066-68 CD. Cal. (finding that defendant, although a computer service, was also an in-formation content provider, and thus could not invoke Section 230 immunity)
    • Carafano v. Metrosplash.com, Inc., 207 F. Supp. 2d 1055,1066-68 (CD. Cal. 2002) (finding that defendant, although a computer service, was also an in-formation content provider, and thus could not invoke Section 230 immunity);
    • (2002) Carafano V. Metrosplash.com, Inc.
  • 44
    • 84964549868 scopus 로고    scopus 로고
    • 992 F. Supp. 44, 50-51 D.D.C (discussing the effects of a licensing agreement between AOL and Drudge on AOL's immunity under Section 230)
    • Blumenthal v. Drudge, 992 F. Supp. 44, 50-51 (D.D.C 1998) (discussing the effects of a licensing agreement between AOL and Drudge on AOL's immunity under Section 230);
    • (1998) Blumenthal V. Drudge
  • 45
    • 67849090172 scopus 로고    scopus 로고
    • 121 Cal. Rptr. 2d 703, 714-18 Cal. Ct. App. (concluding that plaintiff failed to prove that eBay acted "outside the immunity for service providers")
    • Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 714-18 (Cal. Ct. App. 2002) (concluding that plaintiff failed to prove that eBay acted "outside the immunity for service providers").
    • (2002) Gentry V. EBay, Inc.
  • 46
    • 38049144140 scopus 로고    scopus 로고
    • Information conduits or content developers? determining whether news portals should enjoy blanket immunity from defamation suits
    • See, e.g., Robert G. Magee & Tae Hee Lee, Information Conduits or Content Developers ? Determining Whether News Portals Should Enjoy Blanket Immunity from Defamation Suits, 12 COMM. L. & POL'Y 369 (2007);
    • (2007) Comm. L. & Pol'y , vol.12 , pp. 369
    • Magee, R.G.1    Lee, T.H.2
  • 47
    • 78049241966 scopus 로고    scopus 로고
    • Comment, untangling the "Publisher" Versus "Information content provider" paradox of 47 U.S.C. § 230: Toward a rational application of the communications decency act in defamation suits against internet service providers
    • Bryan J. Davis, Comment, Untangling the "Publisher" Versus "Information Content Provider" Paradox of 47 U.S.C. § 230: Toward a Rational Application of the Communications Decency Act in Defamation Suits Against Internet Service Providers, 32 N.M. L. REV. 75 (2002);
    • (2002) N.M. L. Rev. , vol.32 , pp. 75
    • Davis, B.J.1
  • 48
    • 78049232284 scopus 로고    scopus 로고
    • Glad, Comment, supra note 14
    • Glad, Comment, supra note 14.
  • 49
    • 78049293259 scopus 로고    scopus 로고
    • Zeran and later decisions have made it quite clear that a computer service provider need not be a mere conduit in order to qualify for immunity. So long as its actions do not take it out of the traditional realm of editorial discretion and into the realm of authorship, a computer service will retain its Section 230 immunity. 129 F.3d 327, 330 4th Cir. ("[Section] 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred."). Of course, at the extreme, the exercise of traditional editorial functions can start to look very much like co-authorship.
    • Zeran and later decisions have made it quite clear that a computer service provider need not be a mere conduit in order to qualify for immunity. So long as its actions do not take it out of the traditional realm of editorial discretion and into the realm of authorship, a computer service will retain its Section 230 immunity. Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("[Section] 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred."). Of course, at the extreme, the exercise of traditional editorial functions can start to look very much like co-authorship.
    • (1997) Zeran V. AOL, Inc.
  • 50
    • 78049291350 scopus 로고    scopus 로고
    • No. Civ. A.3:02-CV-2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004).
    • No. Civ. A.3:02-CV-2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004).
  • 51
    • 78049254405 scopus 로고    scopus 로고
    • The defendant's website, "The Ripoff Report," can be accessed at both
    • The defendant's website, "The Ripoff Report," can be accessed at both http:// www.badbustaessbureau.com and http://www.ripoffreport.com.
  • 52
    • 78049303976 scopus 로고    scopus 로고
    • MCW, 2004 WL 833595, at *1.
    • MCW, 2004 WL 833595, at *1.
  • 53
    • 78049256783 scopus 로고    scopus 로고
    • The plaintiff alleged, among other violations, unfair competition, business disparagement, and trademark infringement. Id. at *2
    • The plaintiff alleged, among other violations, unfair competition, business disparagement, and trademark infringement. Id. at *2.
  • 54
    • 78049267209 scopus 로고    scopus 로고
    • Id. at *7
    • Id. at *7.
  • 55
    • 78049238171 scopus 로고    scopus 로고
    • Id. at *1,*9 nn. 10-11
    • Id. at *1,*9 nn. 10-11.
  • 56
    • 78049303023 scopus 로고    scopus 로고
    • Id. at *10
    • Id. at *10.
  • 57
    • 78049301608 scopus 로고    scopus 로고
    • Id. at *7-8 ("The CDA requires courts to determine ... when content provided by third-parties is somehow transformed into content created or developed by an interactive computer service. The distinction between merely publishing information provided by a third-party as an interactive computer service and actually creating or developing any of the information posted as an information content provider is critical." (citation omitted))
    • Id. at *7-8 ("The CDA requires courts to determine ... when content provided by third-parties is somehow transformed into content created or developed by an interactive computer service. The distinction between merely publishing information provided by a third-party as an interactive computer service and actually creating or developing any of the information posted as an information content provider is critical." (citation omitted)).
  • 58
    • 78049240522 scopus 로고    scopus 로고
    • 47 U.S.C. §230(f)(3) (2006)
    • 47 U.S.C. §230(f)(3) (2006).
  • 59
    • 78049268469 scopus 로고    scopus 로고
    • The MCW court ultimately concluded that BBB was not entitled to protection under Section 230. Id. at *10. Its conclusion was based in part on the argument that even if BBB was not literally the creator or developer of the content at issue, it was at the very least "responsible ... for the creation or development" of that content
    • The MCW court ultimately concluded that BBB was not entitled to protection under Section 230. Id. at *10. Its conclusion was based in part on the argument that even if BBB was not literally the creator or developer of the content at issue, it was at the very least "responsible ... for the creation or development" of that content.
  • 60
    • 78049253486 scopus 로고    scopus 로고
    • Id. at *10 n.12. This interpretation of Section 230(f)(3)'s definition of information content provider is broader than the majority view, narrowing Section 230 immunity. It provides, however, no more guidance than does the majority view for determining where to draw the line between mere service providers and content providers. It simply moves that line in a direction less favorable to immunity
    • Id. at *10 n.12. This interpretation of Section 230(f)(3)'s definition of information content provider is broader than the majority view, narrowing Section 230 immunity. It provides, however, no more guidance than does the majority view for determining where to draw the line between mere service providers and content providers. It simply moves that line in a direction less favorable to immunity.
  • 61
    • 78049293259 scopus 로고    scopus 로고
    • 129 F.3d 327, 330 4th Cir. ("[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.")
    • Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("[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.").
    • (1997) Zeran V. AOL, Inc.
  • 62
    • 77951962857 scopus 로고    scopus 로고
    • 339 F.3d 1119, 1120-21 9th Cir.
    • See, e.g., Carafano v. Metrosplash, Inc., 339 F.3d 1119, 1120-21 (9th Cir. 2003);
    • (2003) Carafano V. Metrosplash, Inc.
  • 63
    • 78049300019 scopus 로고    scopus 로고
    • 318 F.3d 465, 468 3d Cir.
    • Green v. AOL, Inc., 318 F.3d 465, 468 (3d Cir. 2003);
    • (2003) Green V. AOL, Inc.
  • 65
    • 78049318435 scopus 로고    scopus 로고
    • 309 F. Supp. 2d 446, 452-53 E.D.N.Y
    • Novak v. Overture Servs., Inc., 309 F. Supp. 2d 446, 452-53 (E.D.N.Y. 2004);
    • (2004) Novak V. Overture Servs., Inc.
  • 66
    • 84964549868 scopus 로고    scopus 로고
    • 992 F. Supp. 44, 50 D.D.C
    • Blumenthal v. Drudge, 992 F. Supp. 44, 50 (D.D.C 1998);
    • (1998) Blumenthal V. Drudge
  • 67
    • 78049245365 scopus 로고    scopus 로고
    • 783 So. 2d 1010,1018 Fla.
    • Doe v. AOL, Inc., 783 So. 2d 1010,1018 (Fla. 2001).
    • (2001) Doe V. AOL, Inc.
  • 69
    • 70449407309 scopus 로고    scopus 로고
    • The scenario is, unfortunately, not all that far-fetched. Consider sites such as DontDateHimGirl.com, ManHaters.com, and TrueDater.com that offer disgruntled lovers the opportunity to vent their frustrations and warn future victims of their ex-partners' faults, mixing public service and sweet revenge. See Feb. 16 Lizette Alvarez, (Name Here) Is a Liar And a Cheat
    • The scenario is, unfortunately, not all that far-fetched. Consider sites such as DontDateHimGirl.com, ManHaters.com, and TrueDater.com that offer disgruntled lovers the opportunity to vent their frustrations and warn future victims of their ex-partners' faults, mixing public service and sweet revenge. See Lizette Alvarez, (Name Here) Is a Liar And a Cheat, N.Y. TIMES, Feb. 16, 2006, at G1.
    • (2006) N.Y. Times
    • Alvarez, L.1
  • 70
    • 78049260968 scopus 로고    scopus 로고
    • 47 U.S.C. §230(f)(3).
    • 47 U.S.C. §230(f)(3).
  • 71
    • 78049271801 scopus 로고    scopus 로고
    • Zeran, 129 F.3d at 330
    • Zeran, 129 F.3d at 330.
  • 72
    • 78049250820 scopus 로고    scopus 로고
    • 47 U.S.C. §230(b) (2006)
    • 47 U.S.C. §230(b) (2006).
  • 73
    • 78049286742 scopus 로고    scopus 로고
    • Zeran, 129 F.3d at 330.
    • Zeran, 129 F.3d at 330.
  • 74
    • 78049246298 scopus 로고    scopus 로고
    • Batzel v. Smith & Barrett v. Rosenthal: Defamation liability for third-party content on the internet
    • Note, 491 ("[T]he Internet is no longer in its infancy, having grown into a vigorous and muscular adolescent.")
    • Jae Hong Lee, Note, Batzel v. Smith & Barrett v. Rosenthal: Defamation Liability for Third-party Content on the Internet, 19 BERKELEY TECH. L.J. 469, 491 (2004) ("[T]he Internet is no longer in its infancy, having grown into a vigorous and muscular adolescent.").
    • (2004) Berkeley Tech. L.J. , vol.19 , pp. 469
    • Lee, J.H.1
  • 75
    • 78049264341 scopus 로고    scopus 로고
    • See Magee & Lee, supra note 26 (arguing that the same defamation standard should apply to both print and web-based news portals).
    • See Magee & Lee, supra note 26 (arguing that the same defamation standard should apply to both print and web-based news portals).
  • 76
    • 78049284805 scopus 로고
    • Newspapers author most of their material and so are not in a position to benefit from Section 230 immunity. Third-party-authored advertisements, though, are the exception. In the print context, courts have held primary publishers like newspapers responsible even for advertisements prepared by others. See DOBBS, supra note 8, §402 citing 317 S.E.2d 534 Ga. Online newspapers, however, would be immune from liability under Section 230.
    • Newspapers author most of their material and so are not in a position to benefit from Section 230 immunity. Third-party-authored advertisements, though, are the exception. In the print context, courts have held primary publishers like newspapers responsible even for advertisements prepared by others. See DOBBS, supra note 8, §402 (citing Triangle Pubs., Inc. v. Chumley, 317 S.E.2d 534 (Ga. 1984)). Online newspapers, however, would be immune from liability under Section 230.
    • (1984) Triangle Pubs., Inc. V. Chumley
  • 77
    • 78049298620 scopus 로고    scopus 로고
    • See, e.g., Holland, supra note 14, at 391-404
    • See, e.g., Holland, supra note 14, at 391-404.
  • 78
    • 78049258786 scopus 로고    scopus 로고
    • See Hearing on Cyberbullying and other Online Safety Issues for Children; HR. 1966, the "Megan Meier Cyberbullying Prevention Act"
    • See Hearing on Cyberbullying and other Online Safety Issues for Children; HR. 1966, the "Megan Meier Cyberbullying Prevention Act";
  • 79
    • 78049315809 scopus 로고    scopus 로고
    • and HR. 3630, the "Adolescent Web Awareness Requires Education Act (AWARE Act) Before the H. Comm. on the Judiciary, 111th Cong. (2009), avdlable at (testimony of John Palfrey, Harvard Law Sch.) ("[N]ewly criminalizing a broad swath of online speech is not the right general approach. Nor do I favor a set of rules that apply only in cyberspace and not in offline life. The rules should, to the greatest extent possible, be the same in the online context as offline. We should strive to apply rules of general applicability to the Internet context.")
    • and HR. 3630, the "Adolescent Web Awareness Requires Education Act (AWARE Act) Before the H. Comm. on the Judiciary, 111th Cong. (2009), avdlable at http://judiciary.house.gov/heartags/hear-090930.html (testimony of John Palfrey, Harvard Law Sch.) ("[N]ewly criminalizing a broad swath of online speech is not the right general approach. Nor do I favor a set of rules that apply only in cyberspace and not in offline life. The rules should, to the greatest extent possible, be the same in the online context as offline. We should strive to apply rules of general applicability to the Internet context.");
  • 80
    • 63349096127 scopus 로고    scopus 로고
    • ("The scope of the immunity the CDA provides for online service providers is too broad.... There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.")
    • JOHN PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF DIGITAL NATIVES 106-07 (2008) ("The scope of the immunity the CDA provides for online service providers is too broad.... There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.");
    • (2008) Born Digital: Understanding The First Generation of Digital Natives 106-07
    • Palfrey, J.1    Gasser, U.R.S.2
  • 81
    • 67849112929 scopus 로고    scopus 로고
    • Comparative institutional andysis in cyberspace: The case of intermediary liability for defamation
    • 654 ("[T]otal immunity for intermediaries rather than distributor liability represents a failure of public policy and the poor resolution of a legal conflict."); Lemley, supra note 11, at 101-02 (arguing that Section 230's immunity provision is inconsistent with and less desirable than other federal Internet intermediary safe harbors)
    • see also Susan Freiwald, Comparative Institutional Andysis in Cyberspace: The Case of Intermediary Liability for Defamation, 14 HARV. J.L. &TECH. 569, 654 (2001) ("[T]otal immunity for intermediaries rather than distributor liability represents a failure of public policy and the poor resolution of a legal conflict."); Lemley, supra note 11, at 101-02 (arguing that Section 230's immunity provision is inconsistent with and less desirable than other federal Internet intermediary safe harbors);
    • (2001) Harv. J.L. &Tech. , vol.14 , pp. 569
    • Freiwald, S.1
  • 82
    • 77951947746 scopus 로고    scopus 로고
    • Comment, the new journalism? Why traditional defamation laws should apply to internet blogs
    • 1475 ("Because many bloggers utilize their blogs to attract a large public audience in a way that resembles the function of traditional print journalism, bloggers should not be immune from suit simply because they publish their work on the Internet. Instead, bloggers who choose to share their views with the public, and who individually monitor their content, should be responsible for ensuring the legality of their content prior to publication.")
    • Melissa A. Troiano, Comment, The New Journalism? Why Traditional Defamation Laws Should Apply to Internet Blogs, 55 AM. U. L. REV. 1447, 1475 (2006) ("Because many bloggers utilize their blogs to attract a large public audience in a way that resembles the function of traditional print journalism, bloggers should not be immune from suit simply because they publish their work on the Internet. Instead, bloggers who choose to share their views with the public, and who individually monitor their content, should be responsible for ensuring the legality of their content prior to publication.").
    • (2006) Am. U. L. Rev. , vol.55 , pp. 1447
    • Troiano, M.A.1
  • 83
    • 78049280197 scopus 로고    scopus 로고
    • 521 F.3d 1157 (9th Cir. 2008)
    • 521 F.3d 1157 (9th Cir. 2008).
  • 84
    • 78049316299 scopus 로고    scopus 로고
    • Id. at 1161
    • Id. at 1161.
  • 85
    • 78049280626 scopus 로고    scopus 로고
    • Id. at 1161-62.
    • Id. at 1161-62.
  • 86
    • 78049280960 scopus 로고    scopus 로고
    • Id. at 1166
    • Id. at 1166.
  • 87
    • 78049314885 scopus 로고    scopus 로고
    • Roommates.com, 521 F.3d at 1162. The Fair Housing Act prohibits discrimination on the basis of "race, color, religion, sex, familial status, or national origin," 42 U.S.C. §3604(c) (2006), and the California fair housing law prohibits discrimination on the basis of "race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability." CAL GOV'T CODE §12955 (West 2005)
    • Roommates.com, 521 F.3d at 1162. The Fair Housing Act prohibits discrimination on the basis of "race, color, religion, sex, familial status, or national origin," 42 U.S.C. §3604(c) (2006), and the California fair housing law prohibits discrimination on the basis of "race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability." CAL GOV'T CODE §12955 (West 2005).
  • 88
    • 78049303521 scopus 로고    scopus 로고
    • Roommates.com, 521 F.3d at 1162
    • Roommates.com, 521 F.3d at 1162.
  • 89
    • 78049267208 scopus 로고    scopus 로고
    • Id. at 1166
    • Id. at 1166.
  • 90
    • 78049311250 scopus 로고    scopus 로고
    • Id. at 1166-67
    • Id. at 1166-67.
  • 91
    • 78049296964 scopus 로고    scopus 로고
    • See, e.g., MCW, Inc. v. Badbusinessbureau.com, L.L.C, No. Civ. A.3:02-CV2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004); see also Chi. Lawyers' Comm. 519 F.3d 666, 670-71 7th Cir. (rejecting majority view of Section 230 immunity and instead interpreting Section 230 immunity to apply only to publication-based torts)
    • See, e.g., MCW, Inc. v. Badbusinessbureau.com, L.L.C, No. Civ. A.3:02-CV2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004); see also Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670-71 (7th Cir. 2008) (rejecting majority view of Section 230 immunity and instead interpreting Section 230 immunity to apply only to publication-based torts);
    • (2008) Civil Rights under Law, Inc. V. Craigslist, Inc.
  • 92
    • 77951947024 scopus 로고    scopus 로고
    • 333 F.3d 1018, 1033 9th Cir. (reasoning that a defendant would not be immune under Section 230 where, though the content was provided by a third party, it was not provided with the expectation that it would be posted to the Internet).
    • Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir. 2003) (reasoning that a defendant would not be immune under Section 230 where, though the content was provided by a third party, it was not provided with the expectation that it would be posted to the Internet).
    • (2003) Batzel V. Smith
  • 93
    • 78049250341 scopus 로고    scopus 로고
    • See supra Part III. 61. No. 31063/94,1995 WL 323710 (N.Y. Sup. Ct. May 24,1995)
    • See supra Part III. 61. No. 31063/94,1995 WL 323710 (N.Y. Sup. Ct. May 24,1995).
  • 94
    • 78049312252 scopus 로고    scopus 로고
    • See supra Part III. B.
    • See supra Part III. B.
  • 95
    • 78049300457 scopus 로고    scopus 로고
    • See supra Part III. A.
    • See supra Part III. A.
  • 96
    • 78049272251 scopus 로고    scopus 로고
    • See RESTATEMENT (SECOND) OF TORTS §577(2) (1977)
    • See RESTATEMENT (SECOND) OF TORTS §577(2) (1977).
  • 97
    • 78049260518 scopus 로고    scopus 로고
    • 836 F.2d 1042 (7th Cir. 1987)
    • 836 F.2d 1042 (7th Cir. 1987).
  • 98
    • 78049265820 scopus 로고    scopus 로고
    • Id. at 1044
    • Id. at 1044.
  • 99
    • 78049287661 scopus 로고    scopus 로고
    • Id. at 1045, 1047
    • Id. at 1045, 1047.
  • 100
    • 78049250819 scopus 로고    scopus 로고
    • Id. at 1047
    • Id. at 1047.
  • 101
    • 78049270330 scopus 로고    scopus 로고
    • For a general treatment of contributing tortfeasor (or "civil conspiracy") liability, see RESTATEMENT (SECOND) OF TORTS §876: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself...." Id.
    • For a general treatment of contributing tortfeasor (or "civil conspiracy") liability, see RESTATEMENT (SECOND) OF TORTS §876: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself...." Id.
  • 102
    • 78049302079 scopus 로고    scopus 로고
    • See DOBBS, supra note 8, §340; see also Drake v. Keeling, 299 N.W. 919 (Iowa 1941); Smithson v. Garth, 3 Lev. 323, 83 Eng. Rep. 711 (1691)
    • See DOBBS, supra note 8, §340; see also Drake v. Keeling, 299 N.W. 919 (Iowa 1941); Smithson v. Garth, 3 Lev. 323, 83 Eng. Rep. 711 (1691).
  • 103
    • 78049240361 scopus 로고    scopus 로고
    • 687 N.E.2d 481 (Ohio Ct. App. 1996)
    • 687 N.E.2d 481 (Ohio Ct. App. 1996).
  • 104
    • 78049266753 scopus 로고    scopus 로고
    • Id. at 486-87
    • Id. at 486-87.
  • 105
    • 78049264798 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 106
    • 78049292264 scopus 로고    scopus 로고
    • Id. at 498
    • Id. at 498.
  • 107
    • 78049246299 scopus 로고    scopus 로고
    • See supra Part III.A.
    • See supra Part III.A.
  • 108
    • 78049241465 scopus 로고    scopus 로고
    • 47 U.S.C. §230(c)(1) (2006)
    • 47 U.S.C. §230(c)(1) (2006).
  • 109
    • 78049275349 scopus 로고    scopus 로고
    • See supra Part III.A.
    • See supra Part III.A.
  • 110
    • 78049245366 scopus 로고    scopus 로고
    • note
    • Apart from the absurd results that follow an interpretation providing immunity in absolutely every instance of third-party-created content, an interpretation that preserves traditional common law bases of vicarious liability can be justi-fled in another way as well: Ratification liability and, to a lesser extent, concert of action liability are based on the idea that tortious action belongs not only to the immediate tortfeasor but also to the vicariously liable actor. This is easy to see in ratification liability. Indeed, the word "ratification" suggests the principle. By approving or sanctioning the actions of another, one takes ownership of those actions such that it is no different than if one had committed them personally. Similarly, conspiracy liability is based on the idea that liability flows from the tortious course of conduct taken as a whole, and that each individual participant is responsible for the entirety of the conduct as if each aspect were individually undertaken. Viewed from this perspective, ratified content or coconspiratorcreated content is not really third-party-created content at all. It is content created by the service provider vicariously.
  • 111
    • 78049259130 scopus 로고    scopus 로고
    • note
    • Indeed, no one could reasonably argue that Section 230 was intended to eliminate all bases of vicarious liability. There is no doubt, for instance, that Section 230 left intact the doctrines of respondeat superior and agency liability. A website owner who argued that he should receive immunity because it was his employee, a third party, who posted tortious material would be laughed out of court. All courts to consider the issue have simply assumed that standard principles of agency law remain unchanged by Section 230's immunity provision.
  • 112
    • 77951947024 scopus 로고    scopus 로고
    • 333 F.3d 1018, 1035 9th Cir. ("Agency is the fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. In order for [the defendant] to be held vicariously liable for the torts of [the third party tortfeasor] on a theory of agency, [the defendant] must have had the ability to control [the third party's] activities." (internal citations omitted))
    • See Batzel v. Smith, 333 F.3d 1018, 1035 (9th Cir. 2003) ("Agency is the fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. In order for [the defendant] to be held vicariously liable for the torts of [the third party tortfeasor] on a theory of agency, [the defendant] must have had the ability to control [the third party's] activities." (internal citations omitted));
    • (2003) Batzel V. Smith
  • 113
    • 78649858251 scopus 로고    scopus 로고
    • No.08-223-HA, WL 5281487, at *7 (D.Or. 2008) ("[P]laintiff has failed to show that the [website] forum moderators are... staff members. Without this evidentiary link, plaintiffs have not shown that the forum moderators are employees or agents ....");
    • Higher Balance, LLC v. Quantam Future Group, Inc., No.08-223-HA, 2008 WL 5281487, at *7 (D.Or. 2008) ("[P]laintiff has failed to show that the [website] forum moderators are... staff members. Without this evidentiary link, plaintiffs have not shown that the forum moderators are employees or agents ....");
    • (2008) Higher Balance, LLC V. Quantam Future Group, Inc.
  • 114
    • 84964549868 scopus 로고    scopus 로고
    • 992 F. Supp. 44, 50 D.D.C. ("It is also apparent to the Court that there is no evidence to support the view originally taken by plaintiffs that [the third party tortfeasor] is or was an employee or agent of [the defendant]."). Ratification and concert of action are no different
    • Blumenthal v. Drudge, 992 F. Supp. 44, 50 (D.D.C. 1998) ("It is also apparent to the Court that there is no evidence to support the view originally taken by plaintiffs that [the third party tortfeasor] is or was an employee or agent of [the defendant]."). Ratification and concert of action are no different.
    • (1998) Blumenthal V. Drudge
  • 115
    • 78049306065 scopus 로고    scopus 로고
    • No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995); see also supra Part I
    • No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995); see also supra Part I.
  • 116
    • 78049242924 scopus 로고    scopus 로고
    • Stratton, 1995 WL 323710, at *4
    • Stratton, 1995 WL 323710, at *4.
  • 117
    • 78049271286 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 118
    • 78049299081 scopus 로고    scopus 로고
    • See id.
    • See id.;
  • 119
    • 78049231366 scopus 로고    scopus 로고
    • RESTATEMENT (SECOND) OF TORTS §§577(2), 578 (1977)(tacludtag failure to remove defamatory materials in the definition of publication)
    • RESTATEMENT (SECOND) OF TORTS §§577(2), 578 (1977)(tacludtag failure to remove defamatory materials in the definition of publication).
  • 120
    • 78049253008 scopus 로고    scopus 로고
    • See supra Part III.B.
    • See supra Part III.B.
  • 121
    • 78049317226 scopus 로고    scopus 로고
    • 47 U.S.C. §230(f)(3) (2006)
    • 47 U.S.C. §230(f)(3) (2006).
  • 122
    • 78049294170 scopus 로고    scopus 로고
    • See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1166-67 (9th Cir. 2008) ("The projectionist in the theater may push the last button before a film is displayed on the screen, but surely this doesn't make him the sole producer of the movie.").
    • See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1166-67 (9th Cir. 2008) ("The projectionist in the theater may push the last button before a film is displayed on the screen, but surely this doesn't make him the sole producer of the movie.").
  • 123
    • 78049291801 scopus 로고    scopus 로고
    • Excluding, of course, ratification by failure to censor. Such theories of ratification are expressly prohibited by subsection (c)(2)
    • Excluding, of course, ratification by failure to censor. Such theories of ratification are expressly prohibited by subsection (c)(2).
  • 124
    • 78049283853 scopus 로고    scopus 로고
    • See, e.g., Roommates.com, 521 F.3d at 1183 (McKeown, J., concurring in part and dissenting in part) ("The majority's definition of 'development' would transform every interactive site into an information content provider and the result would render illusory any immunity under §230(c).")
    • See, e.g., Roommates.com, 521 F.3d at 1183 (McKeown, J., concurring in part and dissenting in part) ("The majority's definition of 'development' would transform every interactive site into an information content provider and the result would render illusory any immunity under §230(c).").


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