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Hastings Law Journal

Abstract

In an effort to remove the disincentives to self-regulation created by the decision in Stratton Oakmont, Inc. v. Prodigy Services Co., and to avoid the onslaught of litigation that would otherwise likely have ensued, Congress passed § 230 of the Communications Decency Act in 1996. With the tremendous and unforeseeable growth the internet experienced immediately thereafter, and continues to encounter today, what should have been a simple mechanism to allow innocent internet service providers (ISPs) to edit and delete content without fear of being charged as publishers has evolved into a relentlessly broad shield that protects contemptible conduct by ISPs who knowingly and purposefully encourage the posting of defamatory content This Note argues that the original purpose of § 230 is continuously and unnecessarily abused by courts, which tend to interpret § 230 as providing a blanket immunity for ISPs, and that websites created specifically to induce or encourage tortious content should be prohibited from invoking such immunity. In the end, this Note concludes that a compromise could be reached by using a totality of the circumstances approach to determine when a website should be held liable for third-party content.

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