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Section 230

What Bloggers Should Know About Section 230

Section 230 refers to Section 230 of Title 47 of the United States Code (47 USC § 230) which was passed as part of the Communication Decency Act of 1996. Even though the CDA was struck down, this section survived and has been the saving grace for a lot of website owners and service providers.

Brief History

In 1995, one senator tried to do the impossible — censor speech on the internet. Senator James Exon stated that he acted out of concern for children, motivated by the ease of access and the availability of pornographic material on the internet. Along with senator Slade Gordon, he introduced The Communications Decency Act to the Senate Committee of Commerce, Science, and Transportation and later that year it was added to the Telecommunications Act. The Act tried to regulate indecency when available to children and obscenity online.

Section 230 was not part of the original legislation but was added later, in conference with the House where it was separately introduced by representatives Christopher Cox and Ron Wyden. This section added protection for online service providers saying they cannot be held liable for what others say on their websites. The CDA didn’t survive for long as it impeded on freedom of speech and was struck down by the Supreme Court as being unconstitutional in 1997 in the landmark case of Reno v ACLU.

What Does Section 230 Cover?

In layman’s terms, Section 230 covers the responsibility of website owners and service providers for third-party content on their website. Holding them responsible was found to be wrong. In the interest of free speech no matter the medium, interactive web communications were granted immunity. If speech would be monitored to the extent that television or radio is, it might have driven off the proposed millions of users of online services.

That, however, created another problem as website owners and service providers themselves would have to be identified as a publisher or distributor of content. If site owners are seen as publishers, they’d be tasked with scouring every piece of content on their site to edit or remove anything that could be found to be dematory or offensive.

If they are seen more as distributors, however, then it is a little bit easier because the letter of the law is a little more lax. The Supreme Court decided it would be better to allow all users freedom of speech than have service providers and website owners regulate the communications so stringently.

How Does This Apply to Bloggers?

A blogger is seen as more of a distributor of content in the eyes of the law, and as such is shielded from most legal actions because of lack of control.

A blogger can cover most subject matter, no matter how controversial, provided they aren’t presenting inflammatory (and false) information about people as fact. This extends to any and all comments you receive on your blog posts. A certain degree of editing can be done to the comments in order to comply with the original message of the post; however you can not change the comment into a defamatory one. For example you can allow a comment that says “Joe is not so nice,” and edit it to say “Joe seems mean” but you can not edit it to say that “Joe is a scammer,” because it implies a factual statement.

Certain obligations must be adhered to as well. If you are contacted about user-generated content on your site and told to take it down, generally you don’t have to and you are still covered by the law. However, if you say that you will take down such postings and fail to do it, you have given up all rights to immunity under law.

Do Bloggers Have to Include Comment Guidelines?

In short, no. The official court rulling allows bloggers to establish and implement comment policies and guidelines but they are not required to do so. The ultimate decision falls on you so bear in mind that most people will appreciate and respect some sort of guidance on what is and isn’t allowed on your website.

Resources

Here is some additional reading to further understand Section 230.

Section 230 Protections: this article, published as a part of Electronic Frontier Foundation’s Legal Guide for Bloggers, explains in great depth what Section 230 covers as well as cases where it cannot be applied.
Key Legal Cases: a list of the major cases where the law was upheld in favor of service providers (equating to bloggers in this instance).
47 USC 230: this resource provides the exact wording of Section 230 in its entirety
Why Moderating Comments Doesn’t Remove Section 230 Protection And Why More Lawyers Need To Understand This: this article explains why moderating comments doesn’t warrant a Cease and Desist order.
Will Section 230 Protect Bloggers From the FTC: the article discuss Section 230 in relation to FTC’s Section 5 Authority which seeks to hold advertisers and endorsers liable for false or unsubstantiated statements made in endorsements.

Section 230 Protects Bloggers

As you can see, Section 230 allows for a lot of unrestrained speech that site owners and bloggers don’t have to individually edit or remove which would become increasingly difficult as your site grows in content and in users. It is protected speech. However, you must stay consistent, and if a comment or post seems questionable to you, it may be easier to reject it than have to seek legal aid further down the road.

There is one more catch though. As this is a US Code, this law may not apply to anyone outside the borders of the United States. Please refer to the communication laws in your own country and seek legal advice if you’re in doubt.

Note also that this is not legal advice under any circumstances. If you have questions, you should always get professional legal advice.