Section 230 of the Communications Decency Act (“CDA”), otherwise known as § 230 Safe Harbor, explains that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C.A. § 230(c)(1).  In addition, § 230 precludes liability for providers who take down offensive material in good faith.  Section 230(c)(2) states that:

No provider or user of an interactive computer service shall be held liable on account of–

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph [(c)(1)].

§ 230(c)(2).  An aggrieved party claiming defamation on a social media site would, therefore, have little success in litigation against the social media site itself.  Most sites, however, incorporate § 230 Safe Harbor into their terms of service, so the aggrieved party may be better served by issuing a polite request to take down the offense material under the terms of service by way of § 230(c)(2)(A).

The CDA Safe Harbor provision leaves open the avenue of suit against the individual poster.  See Defamation in a Social Media World, Jan. 14, 2013.  But website providers may bring themselves within the crosshairs if they comment on the posts, induce users to post certain material, or edit the posts to the point where a court would find that the provider sufficiently contributed to the content.  The courts have yet to establish the point where a provider crosses from simple editing to providing actionable content.  Compare Fair Hous. Council v., LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (en banc) (declining to extend safe harbor where a provider induced users to enter certain objectionable content) with Chicago Lawyers’ Committee For Civil Rights Under Law v. Craigslist, Inc., 519 F.3 666, 671–72 (7th Cir. 2008) (holding Craigslist immune to offensive posts because Craigslist, while allowing the content, did not induce users to post them).

Seth Jaffe ( / +1 713 651 5370) is an associate in Fulbright’s Intellectual Property Practice Group.