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The Communications Decency Act has been described as the greatest Internet law. The first major Internet law designed to censor the Internet actually enabled the interactive Internet. While the censorship provisions of the Communications Decency Act went down in unanimous supreme court flames, a separate provision remains standing. The Good Samaritan provision of the CDA (47 U.S.C. § 230) declared that networks and online services are not publishers and therefore are not liable for the content of third parties.
This is huge. This means YELP can run a review site, hosting reviews by third parties, and not be liable for the content of those reviews. This means Twitter can operate a revolutionary micro-blog and not be liable for what people tweet. The Communications Decency Act placed online services in the tradition of common carriage, where networks carry content but are not liable for what that content is.
This week’s court decision tests the reach of the protections of 47 U.S.C. § 230. Traditionally, Sec. 230 protects online services that offer interactive sites where third parties come and post content. But what happens when it is the online service itself that posts the third party content. What happens when the ACME corporation operates an online service, acquires and posts some content, and that content potentially gives rise to a legal cause of action? Is ACME liable as a publisher of that content?
In Nasser v. WHITEPAGES, INC., Dist. Court, WD Virginia 2012, Plaintiff brought suit against Defendant for allegedly incorrectly publishing plaintiff’s phone number as “Comcast Phone of Virginia.” “Plaintiff alleges that, because of these errors, he received thousands of unwanted calls intended for Comcast.” Apparently Plaintiff contacted Defendant, and Defendant promised to remove the incorrect listings. But instead, Defendant’s data was sold to another publisher, and the errant phone number was published again. Defendant had acquired the data from Verizon, a third party. But this is the important twist to this case: while Verizon is reportedly the creator of the content in question, Verizon did not post the content to Defendant’s website – Defendant did. So does that make Defendant liable as a publisher?
The Court concluded,
While such control over content stretches the boundaries of Section 230 immunity, courts have found that an interactive service provider who solicits, pays for, edits, and generally maintains active control over the content of its website may continue to assert immunity from liability. See Blumenthal v. Drudge, 992 F.Supp. 44, 49-53 (D.D.C. 1998) ( "Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others."); Zeran v. American Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("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."); See also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257-258 (4th Cir. 2009) (plaintiff required to plead facts that the defendant performed something more than its traditional editorial function). Additionally, plaintiff has not alleged that the defendant encouraged inaccurate or defamatory posts, which could remove it from the protection of the Section 230 immunity. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257-258 (4th Cir. 2009).
The Court held that even though it was Defendant who posted the content to its online service, nevertheless 47 U.S.C. § 230 protects Defendant from liability for third party content. Defedant's Motion to Dismiss Plaintiff's claim was granted.