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An Objective Test for ''Provide''
Posted by Steven Wu on Thursday, June 26 @ 11:38:55 EDT Free Expression
Section 230(c)(1) of Title 47, the Cox-Wyden amendment to the Communications Decency Act of 1996, says, "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 section essentially immunizes "information content providers"--including ISPs, bulletin boards, and the like--from lawsuits stemming from their publication of materials provided by other parties. The section thus grants information content providers significantly more protection than offline publishers or providers, who may be held liable for defamatory text even if they are not the authors of the text and, under certain circumstances, even if they are unaware that the defamatory statements were made.

In Batzel v. Smith, the Ninth Circuit Court of Appeals deals with the question of when it can be said that one information content provider "provided" information to another provider or user. (If the information is not "provided" but is instead stolen or otherwise taken from a third party, the information content provider is not immune to suit.) The court's answer:

[T]he focus should be not on the information provider's intentions or knowledge when transmitting content but, instead, on the service provider's or user's reasonable perception of those intentions or knowledge. We therefore hold that a service provider or user is immune from liability under sec. 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other "interactive computer service."
The court's opinion is here. An article about the decision is here. (Links via How Appealing.)
 
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