Published in Litigation, Volume 43, Number 3, Spring 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
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Section 230 as
Gatekeeper
When Is an Intermediary Liability
Case Against a Digital Platform
Ripe for Early Dismissal?
JEFF HERMES
The author is deputy director at the Media Law Resource Center, New York City.
A new case lands on your desk. You give the complaint a quick
read, and it seems your client is being sued b ecause an online
platform or service the client operates wa s used as the medium
for a third part y’s allegedly nefarious deeds. Being a n attorney
savvy in t he ways of digital communication, your m ind immedi-
ately leaps to section 230(c)(1) of the Communications Decency
Act, 47 U.S.C. § 230(c)(1), the alternatively prais ed and reviled
federal law from 1996 that ins ulates “interactive computer ser-
vices” from being treate d “as the publisher or speaker of any
informat ion provided by another i nformation content provider.”
(Another part of sect ion 230 specifically protects act ive modera-
tion of user content (47 U.S.C. §230(c)(2)), but we focus here on
the general immun ity provided by section 230(c)(1).)
For more than 20 years, sect ion 230 (also referred to as the
“CDA”) has been one of the fundamental legal pri nciples that al-
lows online services a s we know them today to exist, by enabling
digital platform s to host a never-ending flow of user-generated
content without the burden of acting as g atekeeper for each
and every comment. But some judges rema in highly skeptical
of whether the broad immunit y granted by section 230 is either
fair or wise, a nd practitioners have been surprised by a number
of recent rulings in favor of plai ntiffs. In this environment , de-
veloping a successful strateg y for defending a section 230 case
takes more than a ba re invocation of the statute.
Discussing a series of key question s will shed some light on
the types of ca ses that might be disposed of under sec tion 230 on
a motion to dismiss or an ant i–SLAPP (strategic lawsuit again st
public participation) motion, as opposed to t hose that are bet-
ter litigated with su mmary judgment (or, gasp, trial) in mind.
Does Your Case Fall Within an Exception to the
Scope of Section 230?
The place to start is whether sect ion 230 applies to your case at
all. The statute does not preclude clai ms falling within cer tain
enumerated exceptions found in section 230(e) including those
sounding in (1) federal crimi nal law, (2) intellectual propert y law,
(3) state law, and (4) communications privacy law.
Not all of these present signif icant limitations on the pro-
tection offered by section 230. Much to the ch agrin of state law
enforcement, the third exception is more or less tooth less: It
provides that state law claim s are not preempted by section 230
to the extent—and only to the extent—that they a re consistent
with section 230. Thus, the t hird exception is less a carve-out
from the protection of sect ion 230 and more a reinforcement of
Congress’s general intent to preempt conf licting state laws. You
are also unl ikely to run afoul of the fourth exception, which a l-
lows claim s to proceed under the Elec tronic Communicat ions
