Twenty years ago, in AOL v. Zeran, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit held that 47 U.S.C. §230 immunized defendant AOL from liability for hosting and failing to block a user’s mendacious electronic bulletin board posts about plaintiff, even after AOL received notice of the existence of the offending posts on its servers. This was the first federal appeals court opinion to define the scope of protection under the Communications Decency Act. This reason alone made the decision and opinion significant. But the Zeran opinion was most notable for its conclusion: an online intermediary may not be held liable for third-party user-generated content, even when it knows that the content is unlawful.
This was an exceptional treatment under law. Generally, under longstanding tort principles, publishers are as liable for distributing material that they know to be unlawful as the original author. But, for the panel, the online services could not be treated in the same way; the internet is different. Without immunity, it explained, intermediaries would be exposed to “liability for each message republished by their services.” That kind of exposure “would have an obvious chilling effect.” “Each notification” of objectionable content, the panel elaborated, “would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information.” Section 230’s purpose, the Fourth Circuit observed, was to preserve the internet as an open forum for expression and commerce. Imposing intermediary liability for the bad acts of third-party users would undermine that purpose.
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