Internet service providers (ISPs)

→ Internet intermediaries bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-based services to third parties

• Service providers:
  • Access providers: Vodafone, WIND, Telecom
  • Caching providers: Google, Bing
  • Hosting providers: YouTube, eBay, Facebook
  • Content providers: la Repubblica, Corriere della Sera

The origins of ISP liability in the US

Pre-Section 230 CDA decisions

Cubby v. Compuserve (1991)

→ CompuServe was an ISP which hosted an online news forum. Cubby alleged that CompuServe was the publisher of third-parties defamatory statements, therefore it should have been held liable. No evidence was presented showing that CompuServe either was aware or should have been aware of the existence of such defamatory content

• The Court excluded CompuServe liability, stating that “CompuServe has no more editorial control over such a publication that does a public library, …
• “A computerized database is the functional equivalent of a more traditional news vendor […] The appropriate standard of liability to be applied is whether CompuServe knew or had reason to know of the allegedly defamatory statements”

Stratton Oakmont v. Prodigy Serv. (1995)

→ Stratton Oakmont (SO) argued that Prodigy should be considered a “publisher” of anonymous statements posted on its bulletin board. Under the common law of defamation, if Prodigy were considered a publisher, it could be held liable for the statements of the unknown user. Conversely, if it were found to be merely a “distributor”, it could not be held liable unless it knew or had reason to know about the allegedly defamatory statements.

• The plaintiffs pointed to Prodigy’s “content guidelines”, which the Court deemed sufficient to treat Prodigy as a publisher
• The Court distinguished the case from that involving CompuServe as Prodigy’s creation of an “editorial staff of Board Leaders who have the ability to continually monitor incoming transmissions”
• Good Samaritan Clause: No provider or user of an interactive computer service shall he held liable on account of 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, … whether or not such material is constitutionally protected

CDA 230 - The most important law protecting internet speech

→ Safe Harbour Provision: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider → NO LIABILITY FOR THIRD-PARTY CONTENT

Interactive Computer Service

Any online service/system that allows multiple users to access the internet or a computer server

Information Content Provider

A person/entity responsible for creating or developing content shared online

The Communications Decency Act (1996)

Section 230 CDA - 47