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Protecting the Important Law You Never Heard Of

Ever heard of Section 230 of the Communications Decency Act?  Well § 230 created the foundation on which today’s user-generated-content sites like AOL forums, LinkedIn, and Facebook were built.  That little law creates the protections for online businesses to host content without the legal liability for the content added by users.

For example, if I posted on an AOL forum that “Disney Kills Kids” (it doesn’t and I love Mickey Mouse), then AOL might be liable for defamation for hosting my post.  But § 230 protects AOL from liability to Disney (I’m still liable, but AOL isn’t).

With the protections afforded to them through § 230, online businesses have grown without fear of lawsuits.  In fact, § 230 is so important that Congress has twice ratified its existence, noting “it is the policy of the US … to preserve the vibrant and competitive free market that presently exists for the Internet”[1] by using § 230 “to prevent lawsuits from shutting down websites and other services on the Internet.”[2]

But some courts are ignoring the law and risking the future of online interactions by stripping away the § 230 protections that facilitated the growth of the Internet.  This happened most recently in the civil lawsuit against StubHub.

So sometimes the laws that you have never heard of protect some of the best services you enjoy.

It all began with a child nagging her parent, Jane Hill, for tickets to Hannah Montana.  Jane then used StubHub to locate a seller of the tickets.  After buying the tickets above face value, and attending the show, Jane then decided to sue StubHub under the state’s anti-scalping law.

The trial court then defied the protections of § 230 and found for Jane.

Leave aside the fact that StubHub never bought, sold, or even touched the tickets; that no action was taken against the actual seller of the tickets; or the fact that Jane knew the tickets were above face value when she bought them; and that she used the tickets to see the show, StubHub is still protected from Jane’s lawsuit under § 230.

StubHub, like an online bulletin board or a newspaper classifieds page, merely provided the environment for a buyer of tickets to find a seller of tickets.  This is the exact type of service that § 230 was created to protect!

Seeing this threat to online businesses, NetChoice joined several other groups in filing an appellate amici brief to help preserve the future of online publishers and platforms.

Because if we begin stripping away the protections afforded by § 230 to online services and expose them to lawsuits, where does that leave these online services, and where does that leave us?

Well the services, if they have to risk potential lawsuits for creating new innovative systems, will likely avoid such innovations.  And that leaves us in a world without user-generated-content services from businesses like AOL forums, LinkedIn, and Facebook.

So sometimes the laws that you have never heard of protect some of the best services you enjoy.

[1] Milgram v. Orbitz Worldwide, 16 A.3d 1113, 1122 (N.J. Super. Ct. 2010).

[2] Id.