Section 230

Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others:

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.

In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:

1. The defendant must be a "provider or user" of an "interactive computer service."
2. The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

Content Providers Are Not Afforded Section 230 Protection

On the other hand, website operators are not protected by Section 230 if they created the content in question, rather than merely publishing third-party content. See Anthony v. Yahoo! Inc.,421 F.Supp.2d 1257, 1262-63 (N.D. Cal. 2006), holding that the CDA did not bar fraud and negligent misrepresentation claims against Yahoo based on alleged creation of false user profiles in order to trick new members into joining and to stop current members from leaving; Hy Cite Corp. v. BadBusinessBureau.com, 418 F.Supp.2d 1142, 1149 (D. Ariz. 2005).

Recently, the Ninth Circuit distinguished Carafano by finding that it does not necessarily control where unlawful information was provided by users in direct response to questions and prompts from the operator of the web site. Fair Housing Council of San Fernando Valley v. Roommates.com, Nos. 04-56916, 04-57173, 2007 WL 1412650, at *2-4 (9th cir. Dec. 5, 2006). Thus, Roommates.com was protected where it provided open fields for "additional comments" but lost CDA protection where it provided pull-down menus for users' responses. Id. This holding suggests that where an ICS takes any part in creating content, even where it only makes brief suggestions as to that content, it may lose its Section 230 protection.

The Roommates.com decision appears to fly in the face of Zeran's holding that the exercise of a publisher's traditional editorial functions will not place an ICS outside the scope of Section 230 protection.