As a general rule, we encourage many of our clients who own or operate websites or blogs and who want to be somewhat protected from Internet defamation claims to not encourage others to post comments. We also explain to our clients the impact of Section 230 of the Communications Decency Act. The U.S. Court of Appeals for the Ninth Circuit has validated our general recommendation for a cautious approach …
Website operators and web log (blog) owners beware – If you encourage illegal content or design your website to require users to input illegal content, you may not be afforded immunity under Section 230 of the Communications Decency Act.
On April 3, 2008, the decision of the U.S. Court of Appeals for the Ninth Circuit came down (the full text of the opinion is posted here) … and inevitably shook the confidence of website operators and bloggers who encourage others to post comments (usually defamatory), on their website or blog.
The opinion is quite lengthy and I am still analyzing the full extent of its impact, but here are some highlights:
The court clarified a misconception that many have of the interpretation of Section 230 of the CDA:
In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content: “[S]ection  provides ‘Good Samaritan’ protections from civil liability for providers . . . of an interactive computer service for actions to restrict . . . access to objectionable online material.
The Court continued:
We believe that both the immunity for passive conduits and the
exception for co-developers must be given their proper scope and, to
that end, we interpret the term “development” as referring not merely
to augmenting the content generally, but to materially contributing to
its alleged unlawfulness. In other words, a website helps to develop
unlawful content, and thus falls within the exception to section 230,
if it contributes materially to the alleged illegality of the conduct.
The message is clear, if you incite or “implore” others to
participate in unlawful conduct, usually defamatory, the CDA will not
be your savior.
Perhaps, one of the most important sections of the opinion is the following passage which creates a clear ambiguity. On one hand, plaintiffs are warned against overly litigious stances. On the other hand, the Court makes clear that if the provider becomes a participant, legal liability may result. The Court stated:
Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality
of third parties. Where it is very clear that the website directly participates in developing the alleged illegality—as it is clear here with respect to Roommate’s questions, answers and the resulting profile pages—immunity will be lost. But in cases of enhancement by implication or development by inference—such as with respect to the “Additional Comments” here—section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.
As this decision shows, the development of Internet defamation and CDA jurisprudence remain fluid. We will continue to keep you posted on the progress and the development of this as well as other Internet Law matters.