Professor Olivier Sylvain’s post about the Zeran v. America Online, Inc. case, which immunized internet service providers from liability for their users’ harmful online activity, has been featured in Law.com.
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.
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Twenty years later, we can safely say that the Zeran formulation has helped to foster diversity and abundance of user-generated online content. In this regard, it has given effect to one of Congress’s chief objectives for §230.
But as the Zeran approach has aged, so has its pertinence, for the worse. Many of the search engines, social media and online marketplaces that benefit from the protection today do far more than serve as “publisher[s]or speaker[s]of any information provided by another information content provider.” The largest and most popular application developers do so much more with their users’ content and data. Google, Facebook and Amazon, for example, do not just publish or edit user content. They design the ways by which their users share information; they analyze and algorithmically sort that information; and they repurpose and commercialize the data in ways that are opaque to most consumers. To talk of publisher or notice liability in this context is quaint and inapposite. It is time that courts attend to the ways in which online intermediaries design their services, rather than reflexively apply publisher liability doctrine.