Another Chink in Section 230′s Armor

by on April 29, 2009 · 7 comments

Just came across this informative blog article by David Ardia, a lawyer at the Harvard Berkman Center. He describes a recent ruling on Section 230 of the Communications Decency Act in a case that the New England Patriots filed against StubHub. The Pats bar fans from reselling their season tickets and want to hold online sites liable for the actions of ticket holders. The judge said that Section 230 did not give StubHub immunity. According to David:

In summary, StubHub profited as ticket prices increased; it didn’t require users to disclose what they paid for their tickets, thus making it harder to police its site; and it encouraged its best clients to buy low and sell high.  Isn’t this the way most online auction sites work?  Surely “knowing participation” isn’t coterminous with “materially contributing” to unlawful activity.

Using the factors described above is a troubling interpretation for Section 230, and has broad implications for online platforms and social networking sites – not just ticket exchanges. The court is sending a message that online sites should be the enforcer of private contracts to which they are not a party. This is an added obligation and potential liability that threatens the stated intent of Section 230, “to promote the continued development of the Internet and other interactive computer services and other interactive media.”

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