Pulling the Plug: Rationalizing the Immunity of the Communications Decency Act

Abstract

In 1996, Congress enacted U.S.C.A Title 47, Chapter V, § 230, Wire or Radio Communication Common Carrier, Common Carrier Regulation, also referred to as Communications Decency Act, 1996 (CDA). While the amendment to the communications Act, 1964 was meant to bring the laws on communication in harmony and up to date yet create a regulatory regime for pornographic content and general indecency in the Cyberspace, in the landmark case of Reno v. ACLU decided in 1997, the U.S. Supreme Court handed down a decision that was to see the anti-indecency provisions of the Act declared unconstitutional. Parts of the Act were upheld and survived the Court’s wrath. Of great interest in this context, is the provision that offers immunity to Online Service Providers (OSPs), on whose cyber networks users post content that may turn out to be harmful to others. A salient example to this is the Facebook social network and the case of an Irish father of a 12 year old who, at the time of authoring this paper, is considering legal action over explicit photographs that his daughter posted online. Consequently, the daughter received solicitations from various male adults in various parts of the world, which caused great distress to the father. Given that the U.S. provisions of the CDA give such broad immunity that the Courts have stretched to make it almost impossible for victims of online infringement to obtain redress against their tortfeasors, a comparative analysis is made between the CDA and the EU Directive on E-Commerce that holds OSPs equally liable for actions over their networks or websites. This paper considers the immunity under the CDA to be overly broad and suggests a bespoke application of the immunity by the Courts, to act as an incentive for OSPs that endeavor to monitor, yet also apply a duty of care over their networks, which should be applied not only as an industry practice, but also codified under the CDA, given the nature and level of development of the internet. The immunity under the CDA should not be used as a conduit to evade the ends of justice.