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An Interpretive Framework for Narrower Immunity Under Section 230 of the Communications Decency Act

21 Pages Posted: 4 Jun 2010  

Gregory M. Dickinson

Harris Beach PLLC

Date Written: May 26, 2010

Abstract

Almost all courts to interpret Section 230 of the Communications Decency Act have construed its ambiguously worded immunity provision broadly, shielding Internet intermediaries from tort liability so long as they are not the literal authors of offensive content. Although this broad interpretation effects the basic goals of the statute, it ignores several serious textual difficulties and mistakenly extends protection too far by immunizing even direct participants in tortuous conduct.

This analysis, which examines the text and history of Section 230 in light of two strains of pre-Internet vicarious liability defamation doctrine, concludes that the immunity provision of Section 230, though broad, was not intended to abrogate entirely traditional common law notions of vicarious liability. Some bases of vicarious liability remain, and their continuing validity both explains the textual puzzles courts have faced in applying Section 230 and undergirds the push by a small minority of courts to narrow the section's immunity provision.

Keywords: Communications Decency Act, CDA, 230, Roommate.com, Roommates.com, Defame, Defamation, Libel, Slander, Internet, Immunity, Immune

Suggested Citation

Dickinson, Gregory M., An Interpretive Framework for Narrower Immunity Under Section 230 of the Communications Decency Act (May 26, 2010). Harvard Journal of Law and Public Policy, Vol. 33, No. 2, 2010. Available at SSRN: https://ssrn.com/abstract=1619535

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