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Online Defamation: Protection Scope of the Communications Decency Act
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BSTRACT
Founded on a prescient desire to protect infant technologies, Congress passed the
Communications Decency Act of 1996 (CDA) to promote Internet growth. Section 230 of the CDA shields Internet service providers (ISPs) from nearly all forms of tort liability for defamatory speech. Although the CDA has come under fire by commentators uncomfortable with the extent of immunity provided to ISPs, cases such as Zeran and Drudge have upheld the CDA and shielded ISPs from liability for any defamatory statement posted on their sites, regardless of notice or exercise of editorial control.
This study analyzed how federal appellate courts and state supreme courts have applied the
three prongs required for the CDA immunity to apply in online defamation cases. This analysis clarifies the scope of protection provided by the Act and the emerging forms of interactive communication that have benefited from that protection.
The study found that § 230 has been interpreted literally. The Act shields both institutional
and individual service providers. This shield applies equally to providers of Internet access or other computer services (such as stock quotations or dating services). The shield protects users of computer services as well, with no difference between active and passive users. The provision bars assigning ISPs the liability of either publishers or distributors. Finally, the Act bars suits against ISPs for information provided by other information content providers, with this later term broadly defined to preclude transforming an ISP into a content provider based on editorial decisions.
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| | Authors: El-Toukhy, Sherine. |
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A
BSTRACT
Founded on a prescient desire to protect infant technologies, Congress passed the
Communications Decency Act of 1996 (CDA) to promote Internet growth. Section 230 of the
CDA shields Internet service providers (ISPs) from nearly all forms of tort liability for
defamatory speech. Although the CDA has come under fire by commentators uncomfortable
with the extent of immunity provided to ISPs, cases such as Zeran and Drudge have upheld the
CDA and shielded ISPs from liability for any defamatory statement posted on their sites,
regardless of notice or exercise of editorial control.
This study analyzed how federal appellate courts and state supreme courts have applied the
three prongs required for the CDA immunity to apply in online defamation cases. This analysis
clarifies the scope of protection provided by the Act and the emerging forms of interactive
communication that have benefited from that protection.
The study found that § 230 has been interpreted literally. The Act shields both institutional
and individual service providers. This shield applies equally to providers of Internet access or
other computer services (such as stock quotations or dating services). The shield protects users of
computer services as well, with no difference between active and passive users. The provision
bars assigning ISPs the liability of either publishers or distributors. Finally, the Act bars suits
against ISPs for information provided by other information content providers, with this later term
broadly defined to preclude transforming an ISP into a content provider based on editorial
decisions.
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