Until a few years ago, the dissemination of information was controlled by traditional forms of media (newspapers, television networks, radio, etc.). Today, however, Web services allowing the average person to share his or her own information and opinions effectively create billions of potential content providers. This change has and will continue to have profound legal implications regarding both the way in which tortious content is handled and who is responsible for such content.
When a Web service community exists with a reasonably substantial and diverse number of content providers, the ideas and commentary expressed among the community benefit both the active and passive users due to a mass sharing of ideas and perspectives. Unlike traditional forms of media, the community of users is the deciding power as to what information is popular and who provides the best content. It also acts as the body policing the black sheep of the community by allowing the community to flag content as objectionable.
This beneficial system of open information sharing would not be feasible if the Web services were liable for each and every piece of third-party information contributed because, among other things, maintenance of the sites would be too costly and cumbersome. That is exactly the immunization provided by Section 230 of the Communications Decency Act.
While not a new law, Section 230 continues to emerge as a highly litigated area of law in the context of user generated and submitted content. Section 230 generally provides “Web services”1 hosting user-generated content protection from tort claims — commonly defamation — arising out of content provided by third parties. Section 230 provides that Web services shall not “be treated as the publisher or speaker of any information provided by another information content provider.”2
In practical terms, a user who writes a harsh or critical comment about another and posts it on a Web service does not make the Web service liable for defamation or another tort claim simply for hosting the third-party content. This law allows Web services to operate without burdensome oversight obligations and litigation threats, which promotes a free forum for users to share their ideas and opinions.
Section 230 also affords a Web service the ability to, without liability, restrict access to content in good faith if it considers the content “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”3 This provision also has been extended to modification of content; therefore, careful consideration should be applied when editing third-party content. Also, to the extent actionable content is created or developed by a Web service, the Web service may fall outside of Section 230’s protection.
It may come as somewhat of a surprise that, in most cases, once the content is posted, the Web service does not have an obligation to remove it solely because it contains material actionable under tort law. This is generally true even if the original content provider later informs the Web service of the tortious nature of the post and requests that the content be removed from the Web service. Failure to remove does not imply the Web service adopts the statement. Furthermore, while employment agreements may restrict what information employees can divulge and what sites can be visited during work hours, it may be hard to convince a Web service to remove that and other content once it is posted on the Web service.
In light of the broad protection afforded by Section 230, traditional methods of dealing with the content may prove even more harmful than the objectionable content itself. If a letter is sent demanding removal of the content, it is likely no action will be taken by the Web service. And to the extent this action becomes public (e.g., posting the demand letter), the community may find it objectionable that the letter was sent in the first place.
On the other hand, leaving a lingering assertion out there (which may include biased, false or misguided information) is probably not the best course of action either. Instead of demanding content be removed, responding to or explaining the content in a well-thought-out response may be a better option.
Despite Section 230’s broad interpretation, all hope is not lost for the community of users faced with, and the subject of, objectionable content. Most Web services have terms of use that govern acceptable content on their sites and have functionality in place allowing the community to decide whether content is in violation of the terms of use or what the community deems appropriate. The community can, and usually does, engage in an editorial function and weed out the objectionable content by using the functionality built into the Web services, which allow users to exercise common sense and determine which posts are objectionable and should be removed.
The power of bringing together a community of users is that it promotes sharing a wealth of information and perspectives that traditional media outlets are unable to provide. It also allows ordinary citizens to act as editors by speaking for themselves on issues, sharing their views with a broad spectrum of users and ultimately determining what issues should be on a new kind of front page.
These benefits could not be achieved without immunizing the intermediaries that allow the dissemination of the information. The future promises to continue to promote positive change in the way information sharing is treated through nontraditional outlets, the uncertainty being what creative new Web service will be the next to empower the community.
n
Matthew Boisen is corporate counsel at Xeriton Corporation, which recently launched a beta version of its Web service, WikiTalk. He can be contacted at mattb@xeriton.com.
1 For purpose of simplicity, I use “Web services” in place of “interactive computer service,” which is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2).
2 47 U.S.C. § 230(c)(1).
3 47 U.S.C. § 230(c)(2)(A).
