Submitted by New Media Rights last modified Wed, 07/17/2013 - 10:38pm
There are three elements of a CDA § 230 defense:
1. The service must be a "provider or user of an interactive computer service." See 47 U.S.C. § 230(c)(2).
An “interactive computer service” is defined in the statute as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2). Although the language is somewhat archaic, the definition of "interactive computer service" is broad enough to cover most forms of social media: websites, forums, blogs, listervs and other User Generated Content (UGC)-heavy sites.
2. The cause of action must "treat" the defendant (service) "as the publisher or speaker" of the allegedly unlawful content in order to be eligible for immunity under CDA § 230. See 47 U.S.C. § 230(c)(1).
The CDA § 230 immunity excludes causes of action based on federal criminal law, Intellectual Property laws, and the Electronic Communications Privacy Act (EPCA). See 47 U.S.C. § 230(e).
3. The content in dispute must have been "[p]rovided by another information content provider" other than the defendant. See 47 U.S.C. § 230(c)(1).
An “information content provider means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3).