Website operators, either as defendants or plaintiffs have resorted to Section 230 of the Communications Decency Act (CDA) to determine website defamation immunity and defamation liability. Under the Section 230, blogs or forums, for instance, benefit from website immunity from tort liability if the information was from a third-party. That third-party could be a subscriber, a passing through poster, or even a frequent poster of content and comments. The website immunity as it is dealt with by the courts is not settled when the content has characteristics and or origin that embroils the website operator.
The CDA defines interactive computer service as an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, i.e., a distributor. The CDA defines information content provider as one typical of a publishers who creates and develops content.
Website immunity is in question when the content’s creation has an element of operator involvement. Website immunity is also questioned when a website has an interactive function. What the courts have delved to discern to what extent the operator’s conduct was involved in editing and selecting the content which may affect website immunity.
Website immunity can be triggered with an operator’s ‘passive’ hosting activity which is typical of one in a distributor function. However, if the operator exercises editorial discretion in determining the selection of submitted material or its content, the website immunity will be questioned as with a publisher. Website immunity hinges on the function of the website operator over the content displayed on its website while the courts have disparately treated the subject.