Two weeks ago, in my article on laws that bloggers can be thankful for, I wrote that one of five laws was Section 230 of the Communications Decency Act (CDA).
Indeed, of the five laws listed, Section 230 probably does more to protect bloggers, forum administrators and other webmasters than any other on the list. However, it’s also the law that seems to be least understood.
So, to help bloggers understand their rights when dealing with content provided by third parties, I’ve prepared a relatively brief primer on Section 230 including its history, what it says and how it applies to blogging.
However, in addition to this one, I also highly recommend checking out the EFF’s guide on the topic as it covers some slightly different ground.
On that note, we’re brought to our first question: How did Section 230 come about?
The History of Section 230
Section 230 was part of the CDA, which was a 1996 law passed by Congress that attempted to regulate pornography online. The bill was actually Title V of the much larger Telecommunications Act of 1996. The CDA wasn’t actually part of the original bill but, instead, was introduced in committee and then added to the Senate version afterward.
The CDA attempted to regulate indecency online, in particular restricting access of obscene materials (pornography) to minors. The law was passed by both houses and was signed by President Bill Clinton in early 1996. However, there was trouble almost out of the gate for the law as legal challenges began to arise, with many saying the law abridged free speech.
In June of 1996, a panel of Federal judges blocked significant parts of the CDA and their decision would be upheld by the Supreme Court a year later, effectively blocking most of the law from coming into effect.
However, one section of the law did manage to survive: Section 230. Section 230 was originally the Internet Freedom and Family Empowerment Act and had passed in the House under that name. It was added to the CDA (and the Telecommunications Act of 1996) in conference between the Senate and the House. This section, as one might expect, had little to do with the stated goals of the rest of the CDA.
In fact, it had a completely different aim altogether and that aim remains relevant to this day.
What is Section 230?
Section 230 simply says:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
What this means is much more complex. Basically though, there are a lot of ways in which speech can get you in legal trouble online as there are a lot of ways that words can harm other people unjustly. However, according to the CDA, you are only responsible for your words and not those of others, even if you provide the speaker the platform for their speech online.
This can provide a very powerful shield to sites that allow users to upload content. It prevents them both from facing lawsuits that could easily bury them and, more importantly, removing any requirement to filter or remove speech that others may consider harmful.
How Does This Apply to Bloggers?
As a blogger you most likely have a comments section and you may also allow guest posts and other user-generated content to be uploaded to your site. This is the content that the law applies to.
While you are still completely responsible for the content in your posts, you, for the most part, can not be held legally responsible for what your users post on your site. This can be powerful legal protection if you’re looking to grow your community and encourage user participation.
What Laws Does it Apply To?
The primary application of Section 230 is defamation, the idea being that if a commenter commits libel, saying untrue things that are harmful to another person’s reputation, that only the commenter is responsible and not the site owner. This is regardless of whether or not the site removes the defamatory speech after being notified.
However, the law is not limited exclusively to defamation and includes, according to the EFF’s guide, “negligent misrepresentation, interference with business expectancy, breach of contract, intentional nuisance, violations of federal civil rights, and emotional distress,” among others.
In short, nearly any law that a commenter can break in a post on your site you are protected against. Your commenter, on the other hand, is likely still in trouble.
What Are the Limitations of Section 230
However, Section 230 doesn’t free you of all responsibility. First, the law does not apply to intellectual property law, your protection there is under the Digital Millennium Copyright Act safe harbor provisions, which does require you to remove infringing material upon notification. Also, it doesn’t apply to criminal law and electronic communications privacy law.
But where things get particularly thorny is the issue of control.
There are a lot of gray area here and a large amount of legal uncertainty, but generally, the less control you have over the content, the better.
The law allows you to edit, remove and alter posts as you see fit, but but you are responsible for any changes you make to the content and the more editorial control you have, the more you slip from being a mere platform provider to a publisher. Do you select what content to publish? Do you offer rewards for content that’s published? Are you encouraging users to post a certain kind of content? Do you add material to published works? Are you involved in the creation of the content in any way?
The more control or influence you have over the user content that’s uploaded, the more likely you are to lose your Section 230 immunity. However, the chasm between “clearly protected” and “clearly not protected” is very wide.
It’s important to be mindful of this as you set up your site’s structure and policies.
In the end, Section 230 is probably the strongest protection the law gives you against lawsuits. As long as you don’t control the content, you can not be held responsible for it and that gives you a lot of breathing room that you might not have otherwise had.
In short, it’s important to be aware of what Section 230 does for you and your site and how you can best use it to protect yourself.
If you construct a site in good faith and in a smart way, Section 230 will go a long way to providing you legal certainty and clarity when dealing with works uploaded by users. While it won’t protect you from your own stupidity, no law can.
All in all, Section 230 is a law that you should remain very much grateful for, even after Thanksgiving has come and gone.