Online Activities Not Covered by Section 230

While most courts have held that Section 230 grants interactive computer services broad, expansive immunity, this recognition often comes with some reluctance by the courts. Occasionally courts try to find ways around the broad immunity grant of Section 230. Early on, most courts that tried to hold service providers liable were trial courts that eventually found themselves reversed on appeal.

Lately, however, some appellate courts have been willing to limit Section 230's immunity. This has primarily involved two types of activities by online publishers:

• Editing of content that materially alters its meaning. If you edit content created by a third-party and those edits make an otherwise non-defamatory statement defamatory, you will likely lose your immunity under Section 230. Where this line is, however, remains unclear. Obviously, if you remove the word "not" from a sentence that reads "Jim Jones is not a murderer," you will have substantially altered the meaning of the sentence and made an otherwise non-defamatory statement defamatory.


• Engaging with users through drop-down forms to create discriminatory content. In a case that appears to be in direct conflict with the Carafano decision mentioned above, the Ninth Circuit Court of Appeals held that Roommates.com was not immune from claims under the Fair Housing Act and related state laws because it "created or developed" the forms and answer choices that those seeking to use the service had to fill out. For example, anyone seeking a roommate had to provide information about themselves, such as “male” or “female,” and indicate who else lived in the house (e.g., “straight males,” “straight females,” “gay males,” or “lesbians”). All prospective users had to choose from a drop-down menu to indicate whether they were willing to live with “straight or gay males,” only “straight males, only “gay males,” or “no males” and had to make comparable selections pertaining to females. In a decision rejecting immunity under Section 230, the court reasoned that by requiring members to answer questions, Roommates.com was essentially causing users to make discriminatory statements. In addition, the court held, Roommates.com also bore liability because it permits users to search the profiles of other members with certain compatible preferences (e.g., search only for females with no children). Fair Housing of Council of San Fernando Valley v. Roommates.com, CV-04-56916 (9th Cir. 2008).

Note: For a general overview of Section 230 of the Communications Decency Act, see the page on Immunity for Online Publishers Under the Communications Decency Act in this legal guide.