By John Alec Stouras
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By now, I am sure you have heard about Section 230. You may know it “protects big tech,” but what does Section 230 do?
The federal law likely protects your small business if your website has any forums, boards, or other types of widgets and doohickeys that allow others to post content. Section 230 (47 U.S.C. § 230, don’t worry, that is just the formal way Section 230 looks in the United States legal code) says websites are not liable for third-party, user-generated, content. Over time, courts have interpreted Section 230 broadly. As a result, Section 230 has spurred innovation by preventing a chilling effect on free speech and expression on the Internet.
If you operate a website, this is a relevant law to know, as it can potentially provide immunity from various tort claims you receive regarding infringing third-party content that was posted on your website. The point is to have top-of-mind awareness of the law, so you do not have to worry about it.
Section 230 In the Hot Seat
Section 230 has been in the news cycle because of a Presidential Executive Order (E.O.), that attempts to hold websites liable for the speech they carry (akin to a modern-day Internet Fairness Doctrine). Because of this, in Congress, there has been a lot of debate. The Democrats want to limit Section 230 based on harmful and derogatory content that’s posted to the Internet. The Republicans, on the other hand, want to limit Section 230 because they believe the law is responsible for the “censorship” of their views.
The E.O. aims to revoke Section 230 immunity from websites that do not moderate their services in “good faith.” Additionally, it would impose a neutrality requirement, forcing sites to carry politically neutral speech. Unfortunately, it seems Section 230’s fate is up in the air. Nevertheless, knowing how judges interpret it, what the Section 230 three-prong test is, and what it does to protect your business, is very important for your business strategy, and overall knowledge of the rules of the Internet.
Further, because we are in a pandemic world, you may have noticed that we use the Internet now more than ever. If you are broadening your business into areas such as parental filters, review sites, blogging, malware-filtering, and more, this article is very relevant to you.
Let’s get started.
What is Section 230, and Who Does it Protect?
To dive into the law a bit: there are two essential sections you need to know. Section 230(c)(1) protects websites from liability for third-party content. Section 230(c)(2) provides additional protections for “good faith” moderation, as described in Section 230(c)(2)(A) and the provisioning of filtering technology in Section 230(c)(2)(B), such as search extensions on your Internet browser. While Section 230(c)(2)(A) does have that “good faith” requirement, decades of case law have collapsed the distinction between (c)(2)(A) and (c)(1). For the most part, content moderation decisions, like suspending or removing an account, or removing comments, are protected under Section 230 (c)(1). For more information, click here.
Section 230(c)(1) states: “No provider or user of an interactive computer service shall be treated as the published or speaker of any information provided by another information content provider.” As stated by Jess Miers, a Brookings Institute contributor, this is the portion that gives Section 230 its teeth. For more information on her article and Trump’s executive order on Section 230 as well as a fantastic introduction to what Section 230 is, click here. Section 230(c)(1) has three prongs: (1) the defendant is a provider or user of an interactive computer service (“I.C.S.”), (2) the plaintiff’s claims treat the I.C.S. as a publisher or speaker, and (3) the claims arise out of third-party content. There is a lot of case law that states that websites, for the most part, are I.C.S.’s. So, if you are worried you do not fall into that category, fear not; you likely do.
For Section 230(c)(2)(B), it states that “No provider/user of any I.C.S. shall be liable . . . of any action taken to enable or make available to information content providers (“I.C.P.’s”) or others the technical means to restrict access [to the content]." In layman’s terms, this section protects your business if it provides filtering tools to third parties. These tools include but are not limited to parental controls, anti-threat filters (anti-virus), search browser extensions, ad-blockers, and more. Section 230(c)(2)(B) provides a similar immunity to the provisioning of those tools as Section 230(c)(1).
Section 230 immunity does not extend to content that the website creates itself in whole or in part (first-party content). You should be cautious about any content your employees might create on behalf of your business too. Often, plaintiffs argue that the website is acting on first-party content instead of third-party content, putting the defendant website outside the scope of the immunity’s reach. I will touch on this more in the section about “what is NOT covered by Section 230.”
So, the answer to who is protected is likely you! If you host user generated content, like a comments section on a blog, a discussion forum, a review website, or a chatroom, you might be entitled to Section 230 immunity. What many Section 230 opponents fail to recognize is that Section 230 protects small businesses, like you, to help you innovate and grow as a company on the Internet.
The Electronic Frontier Foundation, (“E.F.F.”) also emphasizes that Section 230 protections are not only limited to protecting you from defamation claims but also nuisance, negligent misrepresentation, and many others. For more information on the EFF’s article, click here. Protecting you from tort claims from third party content that is posted on your site is very important.
How Does Section 230 Apply to My Business?
Section 230’s procedural benefits are invaluable. Defendants consistently win at the motion to dismiss phase, just because the immunity is so powerful. In turn, plaintiffs recognize the futility of bringing frivolous suits against websites for issues arising out of third-party content. One of the explicit purposes of the law was to spur innovation on the online frontier. Logistically, there’s nothing you need to do to acquire the immunity Section 230 provides. The elements of your website that host user-generated content are entitled to Section 230 immunity. It is as simple as that.
What is NOT Covered by Section 230?
Though Section 230’s scope is broad, it has its limits. Section 230 does not cover legal liability arising out of intellectual property infringement claims. It also does not shield against federal criminal prosecution. Yes, this means you have a duty to filter and report child pornography, for example.
Also, The Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) amendment to Section 230 makes it illegal to knowingly facilitate and support sex traffickers. FOSTA-SESTA has a complicated history. Though you likely will not run into many complications with this exception, it is something you should be aware of. For more information on those laws, click here.
Additionally, Section 230 usually does not apply when the site makes material edits to the content. Though not recommended, you might be okay if you make insignificant edits to third-party content, like for grammar, syntax, and flow. However, edits that change the meaning of the content may be considered sufficiently material, and the immunity provided by Section 230 will likely be pierced. Let’s use an example of when Section 230 protection likely does not apply.
Bob Builder has his website review service, called Bob Builders Review, where construction enthusiasts review contractors. A writer, Angles Adam, a construction expert, wrote a review about a beam’s contractor, Beam-maker Barley, stating he’s a shoddy craftsman and gave him a one-star review. Bob Builder really dislikes Angles Adam and is friends with Beam-maker Barley, likely because of the use of alliteration of “B” in both of their names. Bob Builder does “publishing edits” of the review, and the sentence is edited to state that Angles loves Beam-maker and changes the review to five stars. Angles sues Bob the Blogger for the changes. Though Bob Builder may think he is protected by Section 230 immunity, and therefore does not need to enter the whole defamation claim, he is likely wrong. An edit such as the one above that made the original statement so materially different, probably would be considered sufficient to pull Section 230 immunity. Further, if Bob the Blogger infringes on any persons’ intellectual property rights., such as using an image that is presently owned and copywritten by another business, Section 230 would not protect him there either. But, fear not Bob, you are still protected in many other areas because of Section 230.
Section 230 in a Changing Legal World
However, Section 230 is in hot water right now. Lawmakers on both sides of the aisle are looking at curbing the immunity Section 230 provides. Therefore, keeping up-to-date on the development of the law is essential. An easy way to do this is following news feeds and law blogs. A simple Google search can help you find many sources that are relevant. For a personal recommendation, Professor Eric Goldman, an Internet law and Section 230 scholar and expert, regularly updates his Technology and Marketing Law Blog with recent cases and updates on the law. For his blog, click here. Also, the American Bar Association has a technology publication center where they post written works that discuss new and emerging topics in the high-tech world. Click here for the link to the ABA publication center.
As I have said before, always consult an excellent high-tech lawyer who has their thumb on the pulse of Internet law. Finding a lawyer can be easy through an online search! Finding a quality lawyer in your field is a little more of an endeavor.
Large firms, such as Orrick and Knobbe Martens, are great places to utilize vast resources if you need representation. Just because Section 230 has broad immunity doesn’t mean that protection is easy to draft and file without legal representation. Preparing documents for the court is a labor-intensive process that almost always necessitates a lawyer. Smaller “boutique” firms are also a valuable resource and can often handle the legal side of every issue for your business. In San Francisco, the law office of George Bravo would be a great start for any Bay Area legal need. Click here. Plus, boutique firms often give free consultations; take advantage of their resources so you can worry less and create more.
Conclusion and Acknowledgements
For all that it’s worth, Section 230 has your back. Being sued can be a horrifying predicament. Even so, it does not have to be when you have a federal law that grants you immunity, and a great high-tech lawyer.
Acknowledgment: I dedicate this article to the huge Section 230 Defender herself, Jess Miers, who is continuing to create publications on the topic and pushing to be an Internet Law expert.
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