Section 230 Of The Communications Decency Act Of 1996: An Overview And Recent Developments

• Published date: 04 October 2022
• Subject Matter: Corporate/Commercial Law, Media, Telecoms, IT, Entertainment, Corporate and Company Law, IT and Internet, Mobile & Cable Communications
• Law Firm: Arnold & Porter
• Author: Mr Scott Feira, Tom Fox, Axel Gutermuth, Nicholas O'Keefe, Oscar Ramallo, Peter J. Schildkraut and Isaac E. Chao

Section 230 of the Communications Decency Act of 1996 ("Section 230")¹ is touted by its supporters as the bedrock for freedom of online expression without which the meteoric growth of the internet would not have been possible. The statute's detractors view it as an enabler of disinformation that is undermining democracy, public health, and other aspects of society. The following provides a brief overview of Section 230, a brief comparison of the liability standards and regulatory oversight for online content, television and print, and a brief description of the regulatory approaches for online content in the European Union ("EU") and United Kingdom ("UK"). The following also provides some of the criticisms levelled at Section 230, and some of the recent reform initiatives.

BACKGROUND ON SECTION 230

What Is Section 230?

Section 230 was enacted in order to provide legal certainty in the wake of two conflicting judicial decisions.

Cubby, Inc. v. CompuServe, Inc.² involved a defamation claim against CompuServe, a company that ran a subscription-based electronic information service, which included a journalism forum in which a third-party published a daily newsletter. Plaintiffs ran a competing online service, and brought a claim in the U.S. District Court for the Southern District of New York against CompuServe and others for alleged defamatory statements made in the newsletter. In ruling on a motion for summary judgment, the Southern District considered whether to apply: (1) the general "publisher" rule that one who repeats or republishes defamatory statements is subject to the same liability as the original publisher of the statements, or (2) the more difficult to satisfy (i.e., less onerous) liability standard applicable to "distributors" like bookstores and libraries, which requires proof that the distributor knew or had reason to know of the defamatory statements. In granting CompuServe's motion, the court viewed CompuServe's service as a type of electronic library, and thus held CompuServe to the less onerous liability standard applicable to distributors.

Four years later, in 1995, the New York Supreme Court in Stratton Oakmont, Inc. v. Prodigy Services Co.³ came out the other way, holding that Prodigy, which hosted electronic bulletin boards, should be treated as a "publisher" for purposes of defamatory statements a third-party made on one of the bulletin boards. The Stratton Oakmont court held that the differentiating factor from the Cubby case was...