CDA 230 and “Traditional Editorial Functions”

One of our spring term Cyberlaw Clinic students contributed to a great post over at the Citizen Media Law Project’s blog last week.  The post relates to the scope of Section 230 of the Communications Decency Act and whether the protections afforded by CDA 230 apply to sites that undertake “traditional editorial functions” with respect to content supplied by users

As noted in the post:

Today, it’s settled law that website operators are protected even if they change the content of users’ postings. The leading case interpreting Section 230, Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), held that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred” (emphasis added). Since Zeran, numerous courts have reaffirmed the principle. The Ninth Circuit, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), held that “minor alterations” did not cost a website operator his immunity when posting another’s email message.

In Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005), for instance, a New Jersey court found Section 230 immunity for a defendant who was alleged to have rewritten some users’ posts. Federal courts in Pennsylvania (Dimeo v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006)) and Louisiana (Landry-Bell v. Various, Inc., 2005 WL 3640448 (W.D. La. 2005)) have agreed in dicta.

Of course, Section 230’s broad grant of immunity does have its limits. Most critically, it won’t help you if you change a comment in a way that creates defamatory meaning that wasn’t there before.  Cf. Doe v. Friendfinder Network, Inc., 540 F. Supp.2d 288, 297  (D.N.H. 2008) (Section 230 provides “no protection to a service provider for publisher tortious content created by the provider itself”); Anthony v. Yahoo! Inc., 421 F. Supp.2d 1257, 1262-63 (N.D. Cal. 2006) (Yahoo! not immune under CDA for allegedly creating fake profiles on its own dating website).

The CMLP post responded to a recent post on Wired‘s Epicenter blog, which suggested that tech blog Engadget had no choice but to completely disable the comments function on its site in order to avoid liability for materials posted by commenters.

This entry was posted in CDA 230, DMLP. Bookmark the permalink.