Monday, June 22, 2009

User-Generated Content - Not All Computer Service Providers Are Immune From Liability

Section 230 of the Communications Decency Act of 1996 (CDA) provides immunity for interactive computer service providers that merely publish information provided by another information content provider. Put another way, as long as the computer service provider is not deemed to be the information content provider (i.e. the one responsible for the user-generated content), the immunity under the CDA applies. However, CDA specifically holds that a computer service provider may be liable and not immune if that which is provided by the web host or other ISP makes it "responsible, in whole or in part, for the creation or development of" the offending conduct.

Therefore, the question becomes whether the actions are sufficient enough to transform the service provider into a content provider. Most generally believe that one who simply allows for posting of user-generated content qualifies for immunity under the CDA. However, as shown above by the CDA's limitation on immunity, participation in the creation or development of that user-generated content may subject the computer service provider to liability. The question, therefore, is: What is the role of the website operator?

The questions a website operator asks users, the information provided in drop-down boxes to users completing a profile, the searches and algorithms run by the website operator utilizing such data, and related considerations are all important when analyzing whether or not the CDA's immunity applies. New court decisions are being issued on Section 230 regularly, and it is imperative that website operators understand the scope of their liability as it relates to their use of user-generated content. Generally speaking, the more neutral the website, the more likely the website operator will be deemed a service provider rather than a content provider. However, questions still remain as to what particular requirements or other activity may cause the CDA's immunity to not apply.

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