Public Policy Favoritism in the Online World: Contract Voidability Meets the Communications Decency Act
Lynn C. Percival IV
affiliation not provided to SSRN
February 11, 2010
Texas Wesleyan Law Review, Vol. 17, p. 165, 2011
This paper addresses a unique situation that arises in the world of interactive websites. Forty-Seven U.S.C. § 230 provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others. For example, if Facebook does not contribute to the defamatory nature of a statement made by a user on his profile page, Facebook cannot be treated as having published that statement, and therefore can not be held liable for defamation. The statute is designed to promote interactive websites and e-commerce, and constitutes a significant statement of public policy in favor of Internet exceptionalism. Section 230 inherently creates a public policy conflict between pro-Internet policy and the policies behind traditional laws, such as defamation law.
This creates an interesting situation when the subject matter of a contract is impacted by § 230. If the performances or underlying conduct related to a contract violate a substantive area of law, but the operator is nevertheless immunized from liability, courts are faced with conflicting public policies when one party seeks to have the contract voided because it is violative of public policy. Section 230 encourages the operator’s conduct, while the underlying substantive law simultaneously discourages the content provider’s conduct. In this situation, the contract should generally be voidable at the operator’s - but not the content provider’s - option. I illustrate this one-sided voidability through the conflict between § 230 and the Fair Housing Act, and explain how creative members of the media can use it to their advantage.
Number of Pages in PDF File: 34
Keywords: 47 U.S.C. § 230, Communications Decency Act, Google, Adwords, Facebook, Void for Public Policy, Contracts, Violative of public Policy, Law and Economics, Deterrence, Internet, Cyberlaw, Roommates.com, Craigslist, Media Law
Date posted: January 26, 2010 ; Last revised: October 27, 2012