ARE YOU THE PROVIDER OF AN “INTERACTIVE COMPUTER SERVICE?”

IVAN HOFFMAN, B.A., J.D.


        The answer to the question posed by the title of this article is likely to be surprising to many readers.  The term “interactive computer service,” which is a key element in the federal statute discussed below, encompasses a considerably broader range of parties than the term might initially seem to indicate.   Given the substantial potential liabilities, obligations and benefits that can result from being the provider of an “interactive computer service” or a user of the same as opposed to an “information content provider,” it is in the best interest of all readers to examine the nature of the manner in which they interact online.

        The reader should also read “Are You A Service Provider?” on my site.  In that article I posed a similar question to the one herein since, as indicated in that article, many parties fall within the said “service provider” definition for purposes of the Digital Millennium Copyright Act (“DMCA”).  As that article indicates, there are a wide variety of liabilities and obligations as well as benefits that flow from being such a “service provider.”  The reader should also read “The Notice and Take Down Provisions of the DMCA” since that article deals with the obligations of the said “service provider” in the event of any claims.

Who And What Is Covered?

        In addition to the DMCA statute discussed in the above article, there is another federal statute, 47 United States Code Section 230, often called the “Communications Decency Act” (“The Statute” in this article).  Let me discuss some, but not all of the provisions of The Statute.   The reader should also read “Defamation On The Internet” for a further discussion about The Statute.

        The Statute starts with Congress expressing its intention with regard to the purpose of The Statute including seeking to preserve the “competitive free market” and flow of information.  Clearly all such policies do not exist in a vacuum and the same often have to be balanced against the rights of parties who may be adversely affected by a “competitive free market.”  How that policy and that balance are expressed substantively is set forth below.

(c) Protection for ''Good Samaritan'' blocking and screening of offensive material

(1) Treatment of publisher or speaker

        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.

        This is how section f of The Statute, defines the above relevant terms:
 (2) Interactive computer service

        The term ''interactive computer service'' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

        An “access software provider” is defined as follows:
  (4) Access software provider

        The term ''access software provider'' means a provider of  software (including client or server software), or enabling tools  that do any one or more of the following:

          (A) filter, screen, allow, or disallow content;
          (B) pick, choose, analyze, or digest content; or
          (C) transmit, receive, display, forward, cache, search,  subset, organize,  reorganize, or translate content.

        Thus The Statute and the cases decided under The Statute express that a party that is the provider of an “interactive computer service” or a user of that service is defined very broadly and would likely include not only those who provide actual connectivity or such “access software” but additionally those who host web sites, those who host discussion boards, chat rooms, listservs or similar lists (all whether or not “moderated”--see discussion below), among other potential providers of an interactive computer service.   Therefore, if you fall within any of these or potentially other categories, you may be subject to The Statute.

        The other key definition in The Statute is that of an “information content provider,” defined as follows:

      (3) Information content provider

        The term ''information content provider'' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. [emphasis added].

        So taken together, The Statute says that if you are the provider of an “interactive computer service” or a user of the same and not an “information content provider,” if someone else posts something defamatory or otherwise violates the rights of other parties, then you may not be treated as the “publisher or speaker” of that posting and thus may not be liable for that posting.

        However, it is possible that you may be considered to be an “information content provider” and therefore NOT protected by the above exemption if you participate, in whole or in part, in the “creation or development” of the allegedly legally offending material.  Some cases have found that mere editing of another’s material may not make the editor an “information content provider” but the line between being the provider or user of an “interactive computer service” and being an “information content provider” is very unclear and quite fuzzy.   Therefore, if you, as the provider of an “interactive computer service” or a user of the same, edit, screen, alter or otherwise participate in the creation or development of the material in whole or in part, you may lose your exemption and be liable.  (Again, it is important that the reader read “Defamation on the Internet.”) This has potential implications for so-called “moderated” lists or “moderated” discussion boards or chat rooms, as well as for web designers who are also hosting web sites since as a designer they may be creating or developing content in whole or in part.  These are but a few examples.

        The Statute goes on to state:

(2) Civil liability

        No provider or user of an interactive computer service shall be held liable on account of –

          (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 protected; or
          (B) any action taken to enable or make available to  information content providers or others the technical means to restrict access to material described in paragraph (1).
        (FOOTNOTE 1)
       (FOOTNOTE 1) So in original.  Probably should be ''subparagraph (A).''

        This means that you may be able, if you are the provider of an interactive computer service or a user of the same, to restrict access or availability of the indicated materials.  Again the scope of these provisions is always subject to interpretation and thus the emphasis again on the word “may” along with appropriate caution about reading The Statute too literally since you may be ultimately found to be liable.

        What many parties who fall within the definition of providing an “interactive computer service” fail to note is that there is the following obligation imposed on the party providing the interactive computer service “at the time of entering an agreement with a customer for the provision of interactive computer service”:

    (d) Obligations of interactive computer service

      A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors.  Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

       Conclusion

        These issues are complex and not given to bright line rules.  All parties that fall or potentially fall within the scope of being the provider of an “interactive computer service” or user of the same or an “information content provider” should consult with an attorney experienced in these matters to see how The Statute may affect those parties.

Copyright © 2003, 2006 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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