Internet Sevice Providers and Webmasters:
Zeran v. America On-Line, Inc., 129 F.3d 327 4th Cir. 1997
At present, Zeran is the leading case upholding the CDA’s limitations on the liability of ISPs for messages posted by subscribers or others. In granting immunity to AOL for defamatory postings by a third party concerning the plaintiff, the court held that the CDA provided AOL, as an ISP, with immunity against any cause of action that would make it liable for information originating with a third-party user of AOL’s service.
Zeran is the leading case upholding the CDA’s limitations on the liability of ISPs for messages posted by subscribers or others. The statute simply provides that "No provider or user of an interactive service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. 230 (c) (1). The plaintiff sued AOL alleging, among other things, that it was liable for its delay in removing from its message boards a prankster’s postings which falsely identified Zeran as a promoter offering exceedingly tasteless Oklahoma Federal Office Building commemorative goods. The court held that the statute "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, Sec. 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role." 129 F.3d at 330. The court also rejected an argument that AOL could be liable as a distributor, rather than as a publisher, holding that the distinction was not valid in this context.
criticized the breadth of the protection afforded when the statute is
interpreted as broadly as this court did, see, e.g., Zittrain, The Rise
and Fall of Sysopdom, 10 Harv. J.L. & Tech 495 (1997) ("Sysops do not
benefit from a small area of overbroad immunity carved from an unlikely
statutory source"). Zittrain argued that if an ISP or system operator
"badly bungled" a response to a complaint about a defamatory posting,
liability would be appropriate, perhaps under a standard analogous to
the "actual malice" standard of New York Times v.Sullivan. Given the potential
volume and variety of postings, the fact that many web site operators
are either volunteers or nonprofit or very small commercial organizations,
and the potential for long distance litigation which is inherent in Internet
based disputes, it was probably wise of congress to err on the side of
over-protectiveness. Some of those concerns were acknowledged by the court,
in holding that the protection extended even after the ISP received notice
of the defamatory postings and did not promptly remove them: "notices
[of defamatory material] could produce an impossible burden for service
providers, who would be faced with ceaseless choices of suppressing controversial
speech or sustaining prohibitive liability."