30 of the Communications Decency Act: How ISPs and Users are Legally Exempted from Offensive Materials

30 of the Communications Decency Act: How ISPs and Users are Legally Exempted from Offensive Materials

Joshua Azriel (Kennesaw State University, USA)
DOI: 10.4018/978-1-60566-368-5.ch032
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Abstract

As a federal law, the 1996 Communications Decency Act (CDA) criminalizes any offensive content posted on a computer server that is operated by an Internet Service Provider (ISP). The law exempts ISPs and other “users” from any liability for the illegal content that is posted by third parties as long as they make a “good faith” effort to restrict the information. Plaintiffs, who claim to be victims of offensive messages and sued ISPs, consistently lost their court cases. District and appellate courts have upheld Section 230’s provisions and Congress’s authority to regulate in this area of online communication. The CDA applies to many forms of Internet communication; for example, websites, chat rooms, discussion forums, wikis, and blogs. This chapter reviews the law, examines how federal and state courts have interpreted the CDA regarding ISPs, describes under what conditions an ISP can be held responsible for illegal content, analyzes the “user” portion of the law, and presents the legal dangers of providing immunity for “users” who post illegal content online.
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Background

Social interaction technologies allow people from all walks of life and across vast geographic distances to communicate with one another. They operate at both the business and personal levels and reflect both the personal one on one interaction and impersonal communication. They can include sites related to a narrow interest about a specific theme (Magid & Collier, 2006). The advantages of SIT include democratizing the Internet so that anyone literally anywhere in the world with a computer and Internet connection can take part in some aspect of global communication and collaboration whether in a professional or personal capacity. The downside to SIT is the danger of individuals using these communication platforms to harm others with content that may be defamatory, lewd, obscene, and invade one’s privacy.

Both adults and minors can be harmed. In an online environment, stalking, cyber-bullying, defaming, and scamming often spreads through SIT. The online world can be just as dangerous as the physical world. While Congress passed the CDA in 1996 to keep regulation of the Internet to a minimum so that the medium could “promote the continued development” and the “availability of educational and informational resources,” lawmakers still wanted to protect victims from online offensive materials.

One of the main motivations for Congress to pass this legislation as part of the Telecommunications Act of 1996 was the decision by the New York Supreme Court in Stratton Oakmont v. Prodigy Servicess Co (1995). In Stratton Oakmont the Court held Prodigy Services liable for defamatory material that was posted on its “Money Talk” electronic bulletin board. Defamation defined by law as harming the reputation of an individual by making a false statement to a third party (Garner, 2000, p. 341). The Court ruled that as the publisher of the bulletin board Prodigy was responsible for all content and had to censor any offensive content. In drafting the law, Congress specifically referred to exempting publishers for any liability for offensive materials written by third party authors. Congress worried that holding publishers liable for content they did not author placed the long-term development of the Internet in danger.

Key Terms in this Chapter

Defamation: Harming the reputation of an individual by making a false statement to a third party.

Cyber Targeting: Using one of the Internet’s communication platforms (such as e-mail or a chat room) for illegal, offensive communication (such as a threat, or blackmail) to sexually harass an individual.

Information Content Provider: Any entity, such as an indvidual, company, or non-profit organization, that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

Jurisprudence: Previous court precedents considered as a whole.

Liability: Being legally obligated or accountable for an action or decision.

Interactive Computer Service: Any information service, system, or access software provider that provides or enables computer access to a computer server, including services that provide access to the Internet.

Good Samaritan Rule: A provision of Section 230 of the Communications Decency Act that encourages Internet Service Providers (ISPs) to voluntarily helps its customers by providing technology (such as filters) to restrict access to the availability of online materials that are obscene, lewd, lascivious, filthy, harassing, or excessively violent. ISPs are bound to notify their customers of parental protections that are commercially available that will help them limit access of harmful materials to minors.

Appropriation of Identity: An invasion of privacy where a third party takes the name and likeness of another for commercial gain or to commit some other harm.

Negligence: Any conduct that falls below an established legal standard that already exists to protect others from harm.

Actual Malice: The deliberate intent to commit an injury against someone.

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