Section 230 of the Communications Decency Act (CDA, codified 47 U.S.C. § 230) and the Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA, codified 17 U.S.C. § 512) provide certain protections for operators of online services from some, but not all, third-party claims arising out of user content posted on those services. These protections are essential for the survival of services that host user content. However, there are many limitations to the scope of protection and conditions on what is required to be eligible for those protections. The law in this area continues to evolve, so we have summarized recent notable cases and legislation that publishers should consider in operating their user content programs.
Section 230 of the CDA protects providers of interactive computer services from liability from suits that may arise when other internet users post material to a provider’s platform, except for infringement of intellectual property rights (which in some circuits has been held to include publicity rights), or violation of federal criminal law or certain other narrow carve-outs. 47 U.S.C. § 230(c)(1).
- Can’t Avoid CDA Immunity Through Indirect Action:
The anticipated case Hassell v. Bird holds true to this. In this case, the California Supreme Court concluded that ordering a third-party platform owner to assist in removing defamatory content (posted to Yelp) would undermine the purpose of the CDA. 5 Cal. 5th 522 (2018). The California Supreme Court reversed the Court of Appeal’s reasoning that by not suing Yelp directly, plaintiff could effectively sidestep the CDA, and held that plaintiff’s litigation strategies could not overcome CDA immunity for a platform provider. The California Supreme Court further reasoned that a platform simply failing to remove reviews from a website, after an order was obtained against the user, did not constitute “aiding and abetting” under California law, and CDA immunity continued to apply. The Supreme Court of the United States declined to take up an appeal in this case. Continue Reading