Communications Decency Act

(Page 2 of 2 of When Is an ISP Liable for the Acts of Its Subscribers? )

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Had America Online been a print newspaper or magazine, it might have owed damages for the injuries caused by Drudge's false statement. Instead, a court dismissed AOL from the lawsuit under the provisions of Section 230 of the Communications Decency Act (CDA), which states that no ISP "shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, the CDA shields ISPs from liability for statements or content from its users. This is true even where -- as in the Drudge case -- the ISP paid the writer for use of the statements.

The CDA has proven to be an all-purpose shield for ISP liability. AOL has used it several times to deflect lawsuits. In one case, an individual posted an advertisement on America Online shortly after the bombing of the federal building in Oklahoma City. The ad offered t-shirts and merchandise with offensive slogans that glorified the bombing and affixed the name and phone number of a California man, Kenneth Zeran, who knew nothing about the offer. Shortly after the ad was posted, Mr. Zeran received numerous angry phone calls from persons who saw the ad. Zeran complained to AOL, who removed the ad. However, an individual using a different screen name quickly reposted the ad. Zeran sued America Online for negligence, claiming the service provider had a duty to prevent the reposting of the bogus messages. A court ruled that under the CDA, AOL was exempt from the lawsuit. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

In a case involving obscenity, an AOL user described and solicited the sale of child pornography videotapes in an online chat room. Another user, offended by the child pornography solicitations, sued AOL, claiming that the ISP had a duty to make sure that the service did not facilitate the distribution of child pornography. A court ruled that AOL was exempt from the claim under the CDA. Jane Doe v. America Online, Inc., 718 So.2d 385 (1998), approved 783 So.2d 1010 (2001).

International Liability

Other nations do not share the U.S. approach of absolving ISPs from liability for the acts of their subscribers. In Britain, an ISP was found liable for a subscriber's defamatory statements. Britain's High Court ruled in 1999 that an ISP could not claim it was an innocent disseminator of the defamatory statements. Instead, the court viewed the ISP as being similar to a print publisher. ISPs are expected to appeal to British lawmakers for legislation limiting liability for statements by users.

In Germany, a court ruled in April 2000 that America Online was liable for a user's posting of unauthorized music.

Conclusion

Thanks to two federal laws, the CDA and the DMCA, American ISPs currently have a Teflon coating. Responsible ISPs who meet the provisions of these two laws can repel lawsuits based upon claims of copyright infringement, defamation, or related claims.

Related Resource

For a jargon-free guide to the laws covering website and software development, get A Legal Guide to Web & Software Development, by Stephen FIshman (Nolo).

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