Summary

At present, Zeran is the leading case upholding the CDA’s limitations on the liability of ISPs for messages posted by subscribers or others. In granting immunity to AOL for defamatory postings by a third party concerning the plaintiff, the court held that the CDA provided AOL, as an ISP, with immunity against any cause of action that would make it liable for information originating with a third-party user of AOL’s service.

Analysis

Zeran is the leading case upholding the CDA’s limitations on the liability of ISPs for messages posted by subscribers or others. The statute simply provides that "No provider or user of an interactive service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. 230 (c) (1). The plaintiff sued AOL alleging, among other things, that it was liable for its delay in removing from its message boards a prankster’s postings which falsely identified Zeran as a promoter offering exceedingly tasteless Oklahoma Federal Office Building commemorative goods. The court held that the statute "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, Sec. 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role." 129 F.3d at 330. The court also rejected an argument that AOL could be liable as a distributor, rather than as a publisher, holding that the distinction was not valid in this context.

Commentators have criticized the breadth of the protection afforded when the statute is interpreted as broadly as this court did, see, e.g., Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J.L. & Tech 495 (1997) ("Sysops do not benefit from a small area of overbroad immunity carved from an unlikely statutory source"). Zittrain argued that if an ISP or system operator "badly bungled" a response to a complaint about a defamatory posting, liability would be appropriate, perhaps under a standard analogous to the "actual malice" standard of New York Times v.Sullivan. Given the potential volume and variety of postings, the fact that many web site operators are either volunteers or nonprofit or very small commercial organizations, and the potential for long distance litigation which is inherent in Internet based disputes, it was probably wise of congress to err on the side of over-protectiveness. Some of those concerns were acknowledged by the court, in holding that the protection extended even after the ISP received notice of the defamatory postings and did not promptly remove them: "notices [of defamatory material] could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability."



The CDA protection was expressly limited in certain respects. The statute was not to limit or expand "any law pertaining to intellectual property," for example. Congress has since passed a more circumscribed protection in the area of copyright, see discussion of the Digital Millennium Copyright Act. The copyright legislation has an elaborate notice regime, of the type which the Zeran court feared might "produce an impossible burden." By treating the protection differently in the two statutes, congress has set up something of an experiment. Time will tell whether systems providers will become cavalier about complaints of defamatory material, given their immunity from liability, or whether the notice and response requirements of the copyright act will result in a quagmire of litigation for systems providers.