Inc. Zeran v. America Online

In the court of appeals decision, Chief Judge Wilkinson elaborated on the lower court's decision by noting that Section 230 of CDA, "precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content--are barred."

However, Zeran argued the law of torts distinguishes distributors from publishers and holds them liable for defamatory material when they have knowledge of their existence. Thus, AOL acted as a distributor as well as a publisher. AOL had been notified, yet the messages were still posted, and the subscriber's access was not closed down in a timely manner. AOL was like a book seller or news vendor who continued to offer offending material for sale after they were notified of the nature of the publications on their shelves. Zeran contended that because a common law distinction existed between distributors and publishers, two different forms of liability applied. AOL was liable as a distributor which was not protected by Section 230.

Wilkinson disagreed with Zeran's logic. Wilkinson noted that even if Zeran had "satisfied the requirements for imposition of distributor liability, this theory of liability is merely a subset, or a species of publisher liability, and is therefore also foreclosed by 230." In essence, and ironically, Zeran's argument placed AOL as a publisher, hence protected by Section 230. Wilkinson continued, "Because the publication of the statement is a necessary element in a defamation action, only one who publishes can be subject to this form of tort liability . . . In this case, AOL is legally considered to be a publisher. Even distributors are considered to be publishers for the purposes of defamation law."

Judge Wilkinson brought two other important points to light in his decision. First, Section 230 sought to address the problems of both censorship and liability given the sheer volume of traffic on the Internet. Wilkinson wrote, "Interactive computer services have millions of users. The amount of information communicated . . . is, therefore, staggering. The spectre of tort liability in the area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems."

The second point was that 230 sought to encourage service providers to self-regulate the dissemination of offensive material, both by advertising their philosophy, and by choosing to remove offensive material when notified of its presence.

Congress enacted 230 to remove disincentives to self-regulation posed by the Statton Oakmont decision. Under that court's holding, computer service providers who regulated the dissemination of offensive material . . . risked subjecting themselves to liability, because [it] cast the service provider in the role of a publisher.

The CDA also stopped third parties from indulging in what Wilkinson called "a no-cost means to create future lawsuits." If an ISP was unprotected, any subscriber could notify them that a message they found was offensive, and legally defamatory. The fact of notice would make the ISP responsible for publishing the message. Wilkinson wrote, "Thus, like strict liability, liability upon notice has a chilling effect on the freedom of Internet speech."