It has now been more than ten years since Congress enacted section 230 of the Communications Decency Act. During that time courts have held that CDA 230 grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from tort liability so long as the information at issue is provided by a third party. Relatively few court decisions, however, have analyzed the scope of this immunity in the context of “mixed content” that is created jointly by the operator of the interactive service and a third party through significant editing of content or shaping of content by submission forms and drop-downs. Accordingly, this is an area that we will be watching carefully and reporting on in the future.
So what are the practical things you can take away from this discussion? Here are five:
1. If you passively host third-party content, you will be fully protected against defamation and defamation-like claims under CDA 230.
2. If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove, or edit material, you will not lose your immunity unless your edits materially alter the meaning of the content.
3. If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity.
4. If you encourage or pay third-parties to create or submit content, you will not lose your immunity.
5. If you use drop-down forms or multiple-choice questionnaires, you should be cautious of allowing users to submit information through these forms that might be deemed illegal.
