Recent criticisms lobbed at Facebook for fake news stories on its platform that allegedly tipped the election in Donald Trump’s favor may spell trouble for businesses operating open websites where users can post content. Sites that aggregate content created by third parties (think Craig’s List, YouTube, or any sites that include a comment section) have long been shielded from liability by a decades old law that, ironically, was originally intended to restrict, rather than expand, Internet speech. Passed by Congress in 1996, the Communications Decency Act was fiercely criticized by free speech advocates. Nonetheless, the Act contains a provision stating that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provider by another information content provider.” 47 U.S.C. § 230(c)(1). As a result, online intermediaries, like Facebook, cannot be considered the publisher—and thereby held legally responsible and punished—for information posted by third parties on their websites.
It is safe to say that Congress had no idea 20 years ago that sites aggregating content created by others would dominate the Internet with the businesses behind them wielding tremendous influence as the primary sources of information for much of the public. Nonetheless, the CDA provision immunizing online intermediaries has remained untouched. Indeed, courts interpret its protections quite broadly. Two decisions issued in the last month make the point.
The Tenth Circuit held in late November that an investment banker and author could not subject the question-and-answer site, Quora, to liability for certain defamatory posts. The author pointed out that Quora refused his requests to remove the post despite evidence they were entered with fictitious user names in violation of Quroa’s policies. Nonetheless, the Tenth Circuit held that the CDA immunized Quora from any liability. See Silver v. Quora, Inc., ___ Fed. Appx. ____ (10th Cir. November 23, 2016).
Just a few weeks earlier, a federal district court in San Francisco assessed a challenge by Airbnb under the CDA and other grounds of a city ordinance making it a misdemeanor to collect fees for booking services for rentals of unregistered units. While the trial court rejected Airbnb’s arguments, it did so while noting that the protections afforded by the CDA are broad and that they formed the primary basis for Airbnb’s challenge to the ordinance. See Airbnb, Inc. v. City and County of San Francisco, ___ F.Supp.3d ___ (N.D. Calif. Nov. 8, 2016). It remains to be seen whether the online-booking giant will appeal this decision.
It certainly possible that cases like this and Facebook’s fake news problem may prompt Congress to reexamine the CDA. Yet even if the law remains unchanged, businesses operating sites with third party content are not completely immune from risk. Just last month, the Seventh Circuit reinstated a suit brought against another online media giant, Gawker, over defamatory comments posted by users in connection with one of its stories. In the suit, the plaintiff alleged not only that Gawker had provided a forum for the posts, but that its employees had also encouraged and helped create the posts in an effort to increase traffic to its site, which would, in turn, make it more attractive to advertisers. The Seventh Circuit held that such allegations were sufficient to show that Gawker could be an “information content provider” and therefore beyond the allegations of the CDA. See Huon v. Denton, ___ F.3d___ (7th Cir. Nov. 14, 2016).
So, what should businesses be thinking about? If you operate a website that allows third parties to post content, the CDA is your best friend. But be careful in taking any step to shape or drive that content in order to increase clicks as you might soon find yourself on the hook for what others say on your site. Also, be aware of national controversies that might prompt legislative action to amend a provision that was likely never intended to become the primary protector for Internet free speech.