As a lead up to the launch of the Citizen Media Law Project’s Legal Guide
in January, we are putting up longer, substantive blog posts on
our project blog discussing various subjects covered in the legal guide. The first post in the series
stems from a talk I gave at the Legal Risk Management in the Web 2.0 World conference
in Washington, DC. As the token academic, I had the task of providing a
general overview of the liability that publishers might face if they
allow users to comment on or submit content to their sites.

I adapted my notes from the talk into a rather long blog post that provides background on section 230 of the Communications Decency Act (“CDA 230”) and highlights the claims and online activities it covers as well as the types of activities that might fall outside CDA 230’s immunity provisions. The post also includes a list of practical tips for those who operate blogs and other websites that allow users to comment or submit content.

Because the post is too long for me to republish here, I’ve included just the summary.  If you are interested in reading more, the entire post can be found on the Citizen Media Law Project’s blog.

It has now been more than ten years since Congress enacted section 230
of the Communications Decency Act. During that time courts have held
that CDA 230 grants interactive online services of all types, including
blogs, forums, and
listservs, broad immunity from tort liability so long as the
information at issue is provided by a third party. Relatively few court
decisions, however, have analyzed the scope of this immunity in the
context of “mixed content” that is created jointly by the operator of
the interactive service and a third party through significant editing
of content or shaping of content by submission forms and
drop-downs. Accordingly, this is an area that we will be watching
carefully and reporting on in the future.

So what are the practical things you can take away from this discussion? Here are five:

  1. If you passively host third-party content, you will
    be fully protected against defamation and defamation-like claims under
    CDA 230.

  2. If you exercise traditional
    editorial functions over user submitted content, such as deciding
    whether to publish, remove, or edit material, you will not lose your
    immunity unless your edits materially alter the meaning of the content.

  3. If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity.

  4. If you encourage or pay third-parties to create or submit content, you will not lose your immunity.

  5. If
    you use drop-down forms or multiple-choice questionnaires, you should
    be cautious of allowing users to submit information through these forms
    that might be deemed illegal.