| Social media platforms and applications are dependent | | | | contexts and on numerous legal theories, including |
| upon communal participation. Members of the | | | | posting of: |
| community share everything from names, professions | | | | - Defamatory information; |
| and scholastic and corporate affiliations to names and | | | | - Opinions; |
| photos of family and friends as well as | | | | - Private information; |
| up-to-the-minute updates on current events. Little is | | | | - False information; |
| too personal on social media, and the greater the | | | | - Pornographic information; |
| extent of the sharing the greater the personal reward | | | | - Harassing commentary; and, |
| for all involved. | | | | - Discriminatory and/or illegal advertising. |
| As in the non-Internet world, people often do and say | | | | |
| things that are not always appropriate - whether | | | | Section 230, however, is not absolute protection. For |
| intentional or not. Examples include a personal opinion, | | | | example, plaintiffs have successfully argued in a |
| a piece of confidential information about oneself, one's | | | | handful of cases that an "interactive computer service" |
| company or an acquaintance. Such communication | | | | was not entitled to Section 230 immunity because the |
| can take the form of a written comment, photos, | | | | person or entity in question was an "information |
| videos or other form of communication. The result of | | | | content provider" with respect to the information at |
| these communications can result in claims of | | | | issue, thereby failing the third test noted above. |
| defamation, incorrect statements of fact, harassment, | | | | Notwithstanding certain plaintiff successes, generally |
| etc. | | | | the social media operator is protected against liability |
| Unfortunately for social media operators, those | | | | for postings made by others so long as the operator |
| adversely affected and their representatives tend to | | | | does not contribute in whole or in part, in the creation |
| include social media operators on the short list of | | | | or development of the content and provides a |
| culpable parties typically based upon some form of | | | | mechanism for detecting objectionable content. |
| contributory negligence. Fortunately for social media | | | | As such, in order for social media operators to obtain |
| operators operating in the U.S., there exists some form | | | | the maximum protection under Section 230 of the |
| of protection to the extent that certain procedures are | | | | CDA, the operator should strictly adhere to the |
| maintained. | | | | following: |
| COMMUNICATIONS DECENCY ACT | | | | - Do not alter any contribution of user-generated |
| Section 230 of the Communications Decency Act of | | | | content. To the extent that user-generated content is |
| 1996 is a landmark piece of Internet legislation. | | | | repackaged - no matter how insignificantly, the social |
| Section 230(c)(1) of the CDA provides immunity from | | | | media operator potentially voids one of the three tests |
| liability to providers and users of an "interactive | | | | and risks exposure. Competent legal counsel should |
| computer service" that publishes information provided | | | | opine on the risk to the social media operator to the |
| by others (e.g., user-generated content). Courts | | | | extent that any user-generated content is repackaged |
| generally apply the following three-prong test to | | | | or reformatted. |
| determine whether a defendant is subject to the | | | | |
| protections afforded by Section 230. | | | | - Maintain the ability for users to alert the operator of |
| 1. The defendant must be a "provider or user" of an | | | | questionable content. Users should at all times be |
| "interactive computer service;" | | | | provided with the ability to report user-generated |
| 2. The cause of action asserted by the plaintiff must | | | | content that violates the terms of use or is generally |
| treat the defendant as a "publisher or speaker" of the | | | | considered offensive or specifically offensive. |
| harmful information at issue; and, | | | | Additionally, users should be provided with the ability to |
| 3. The information must be "provided by another | | | | promptly delete user-generated content that is directly |
| information content provider," (i.e., the defendant must | | | | posted to their profiles or personal space within the |
| not be the information content provider of the harmful | | | | social media platform. |
| information at issue). | | | | |
| This section of the CDA was enacted to enhance | | | | - Maintain formal policies and procedures for |
| free speech by making it unnecessary for Internet | | | | addressing complaints of questionable content. The |
| service providers and other service providers to unduly | | | | policies should include both external terms of use |
| restrict customers' actions for fear of being found | | | | policies and internal policies and procedures for the |
| legally liable for customers' conduct. This law | | | | timely management of complaints. Periodic audits and |
| effectively protects social media operators since it | | | | compliance with recommended corrective actions |
| covers computer services that involve user-generated | | | | should be performed and well documented to serve |
| content | | | | as support in the event of legal action. |
| As a result of its effective protections, Section 230 is | | | | |
| considered quite controversial because courts have | | | | - The Terms of Use should explicitly state that the |
| interpreted Section 230 as providing complete immunity | | | | user is fully responsible and liable for any legal action |
| to Internet service providers and other service | | | | attributed to their user generated content and the TOU |
| providers with regard to torts committed by their users. | | | | should include indemnification language that |
| Critics of Section 230 are primarily concerned with its | | | | contractually indemnifies the social media operator as |
| effectiveness at leaving victims with no hope of relief | | | | a result of user-generated content. Any subsequent |
| in instances where the true tortfeasors cannot be | | | | changes to the TOU should require the user to accept |
| identified or are judgment proof. | | | | the changes prior to permitting the user access to the |
| Courts have upheld Section 230 in a variety of factual | | | | social media platform. |