The Communications Decency Act of 1996 created a shield for website owners and operators that has garnered a significant amount of controversy as terms like revenge porn, cyberstalking, and cyberbullying entered our national lexicon. 47 U.S.C. §230.

The law provides that “[n]o provider or user of any computer service will be treated as a publisher or speaker of any information provided by another internet content provider.” Essentially, websites can’t be sued for what their users post. Many popular web services have built privacy protections and content restrictions into their terms of service and remove facially unlawful posts after notification. Other websites are inundated with such posts and avoid liability by taking a hands-off approach. And this means that for victims of digital privacy torts, unless the post involves child pornography, there aren’t many clear avenues to get the content removed. There are many proposed reforms to the CDA’s §230, but none have been enacted.

Recognizing the difficulty under the current legal regime, in some circumstances it is still possible to pierce the veil of civil immunity given to websites and their operators for hosting a third party’s unlawful content.

  • Design: Some websites have lost immunity where the website was designed to be a conduit for unlawful material or the host took an active role in soliciting and using unlawful material. See Fair Hous.Council of San Fernando Valley v. Roommates.Com, LLC,521 F.3d 1157, 1166–67 (9th Cir. 2008);”); FTC v. Accusearch Inc., 570 F.3d 1187, 1199–1200 (10th Cir. 2009)
  • Contribution: Websites have also lost immunity for statements or acts taken by the website operator connected to the offending post. See Huon v. Denton, 841 F.3d 733, 742 (7th Cir. 2016). If a website adds to the third party’s words or content beyond the role of an editor, the publisher may cross the line into being a content developer. Some courts have been quite restrictive about what sort of actions cross that line, but it remains a possible avenue. Jones v. Dirty World Entertainment Recordings LLC, 755 F. 3d 398 (6th Cir. 2014)
  • Origination: Less well known sites may be running as a liability shell, purporting to be an open forum but in reality being a personal platform for an individual or group to post whatever defamatory or unlawful information they wish. If the site operator is also the originator of an unlawful post, CDA §230 protections never applied in the first place.

If you think your website is in danger, let the experienced cyber law attorneys at the Goosmann Law Firm help you. Give us a call today at 712-226-4000 or visit one of our three locations in Sioux City, Iowa; Omaha, Nebraska; or Sioux Falls, South Dakota.


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