The communications decency act, commonly referred to as the CDA, or the CDA §230, is usually interpreted as providing internet service providers with immunity from the posting of defamatory, libelous or other inflammatory content of others. 

However, on June 25th, the Ninth Circuit, in Zango, Inc. v. Kaspersky Lab, Inc. held that the CDA can apply to more than just Internet services like blogspot that allow users to post content....it can also apply to companies that help users "filter" content.

At Section 230(c)(2)(B), the CDA provides protections against civil liability for "good samaritan" blocking and screening of offensive material.

Under that section, a provider or user of an interactive computer service shall not be held liable for "any action taken to enable or make available to information content providers or others the technical means to restrict access to" certain objectionable materials.

In other words, in addition to immunizing interactive computer services from claims seeking to treat them as the "publisher" or "speaker" of content wholly provided by their users, the CDA also provides protections for companies that provide blocking technologies.

The Court held that a company selling software that blocked the installation of pop-up advertising systems was a "provider" of an "interactive computer service," within the meaning of the CDA, the court said. As a provider, it was entitled to immunity for providing users with the means to restrict access to objectionable material—in this case, adware.

The software company would be shielded by the CDA so long as it was the "provider" of "an interactive computer service," the court said.

Under the plain terms of the CDA, the company qualified as an interactive computer service because it is an "access software provider[,]" pointing to the definitions section of the statute.

"Access software providers" provide software or tools that filter, screen, allow, or disallow content, the court said. The company met that standard by providing consumers with anti-virus and anti-malware software that blocks, among other things, the installation of the plaintiff's service that generates pop-up ads.

The company also fell within a literal reading of the "access software provider" phrase, because it provides subscribers with access to its servers to obtain software updates, the court said.

Zango argued that such a broad reading of the statute would bestow immunity upon all companies that provide software offering online updates. The court disagreed.

"By its terms, to qualify for immunity, the interactive computer service must provide the technical means to restrict access to objectionable material[,]" .

The nuances continue:

In Batzel v. Smith, (9th Cir 2003), the court said that the operator of a listserv or a website who published allegedly defamatory material provided by a third party would be shielded by the CDA, regardless of whether the operator was an "interactive computer service."

Along the way, the Batzel court remarked that the CDA "insulates service providers from claims premised on the taking down of a customer's posting such as breach of contract or unfair business practices."

Here, Zango—the company whose adware was blocked—argued that statement meant that only companies that provide access to content are entitled to benefit from CDA immunity provisions.

The court disagreed. That statement was intended to address facts at issue in the Batzel case, not as a general interpretation of the limits of CDA immunity.

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