(A) Any action voluntarily taken in good faith to restrict access
to or availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is constitutionally
(B) Any action taken to enable or make available to information
content providers or others the technical means to restrict access to
materials described in paragraph ( 1). 95
Taken together, § 230 (c)( 1) and ( 2) provide nearly complete immunity for ISPs insofar
as they publish content provided by others. Section (c)( 1) clarifies that an ISP is not a publisher
or speaker with respect to information posted by others on its site; thus, an ISP cannot be held
liable as an editor of the content of others’ specific postings under libel laws or other torts that
may be committed by those who post material on the site. 96 Section (c)( 2)(A) and (B) immunize
ISPs if they do exercise editorial action with respect to content posted on their site when the
action is “voluntarily taken in good faith” to restrict access to offensive material. Consequently,
courts have found nearly complete civil immunity for ISPs under the CDA. Unfortunately, courts
have also consistently held that the CDA protects ISPs from liability when minors have been
harmed by sexually explicit content.
A. CDA Immunity Under Civil Law
Courts have consistently held that the CDA protects ISPs from liability with respect to
claims of defamation and libel, 97 false information, 98 negligence, 99 and even most allegations of
racial or sexual discrimination. 100 For example, the Fifth Circuit Court of Appeals noted that
“[c]ourts have construed the immunity provisions in § 230 broadly in all cases arising from the
95 47 U.S.C.A. § 230(c).
96 This provision was added in reaction to cases such as Stratton Oakmont, Inc. v. Prodigy Services. Co., which held Prodigy Services
liable as a publisher for material published on its site. See Stratton Oakmont, Inc. v. Prodigy Servs. Co., 30163/94, 1995 WL 323710,
at 7 (N. Y. Sup. Ct. May 24, 1995) (holding that “Epstein acted as PRODIGY's agent for the purposes of the acts and omissions
alleged in the complaint”); see also Shiamili v. Real Estate Group of New York, Inc., 929 N.Y.S.2d 19, 24 (2011) (explaining that
section 230 “was a response to cases such as Stratton Oakmont, Inc. v. Prodigy Servs. Co.”).
97 See, e.g., Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1121-22 (9th Cir. 2003) (finding an Internet service provider dating
site that posted a false profile was immune); Zeran v. Am. Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997) (holding AOL to be immune
even where it was accused of being unreasonably delayed in removing defamatory messages).
98 See, e.g., Goddard v. Google, Inc., C 08-2738JF(PVT), 2008 WL 5245490, at 1 (N.D. Cal. Dec. 17, 2008) (finding the Internet
provider to be immune under the CDA against allegations of money laundering and fraud); Ben Ezra, Weinstein, & Co. v. Am.
Online, Inc., 206 F.3d 980, 984-85 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (holding that AOL was not considered a
publisher by editing stock quotations or working with a third-party provider to correct errors, and therefore AOL could not be held
liable for defamation when it displayed the stock quotes on its site). Id. at 985-86.
99 Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008).
100 See, e.g., Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 672 (7th Cir. 2008) (finding
Craigslist immune against allegations involving postings of third parties that contained discriminatory statements). But see Fair Hous.
Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,1161-63 (9th Cir. 2008) (en banc) (where the court did not
find immunity under the CDA when discrimination was charged with respect to profiles created by the user based on a series of
questions developed by the Internet service provider).
Roommate requires each subscriber to disclose his sex, sexual orientation and whether he would bring children
to a household . . . . A website operator can be both a service provider and a content provider . . . . But as to
content that it creates itself, or is ‘responsible, in whole or in part’ for creating or developing, the website is also
a content provider. Thus, a website may be immune from liability for some of the content it displays to the
public but be subject to liability for other content.