Section 230 Protects Ordinary Users from Legal Liability for Merely Retweeting

Section 230 of the Communications Decency Act (47 U.S.C. § 230) is one of those rare technical provisions of law that has seeped into the public discourse and tends to engender strong feelings. It is the subject of opinion pieces in major news outlets arguing for its repeal. Books have been written about it, including one that credits the provision with having created the modern internet. The key segment of Section 230 reads: "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." In practice, the statute prohibits liability for providers (like Twitter) and users (anyone with their own Twitter account) for content provided by someone else. If User A writes something defamatory, then Twitter generally is not liable for it. Setting aside the larger policy disputes over the statute, the recent decision in Holmok v. Burke, 2022-Ohio-2135 (8th Dist.), provides a good example of the protections offered by the CDA for the average user.


The Holmok case involved a complaint for defamation and intentional infliction of emotional distress brought by a high school teacher against two students, one who allegedly made a tweet claiming the teacher acted in ways that were racist and sexist and another who allegedly retweeted that first tweet and added to it a tag identifying the local high school. The trial court dismissed the claims against the retweeter, ruling that Section 230 precluded liability, and an appeal followed.


"The CDA establishes immunity against all causes of action of all kinds for interactive service providers and users." Twitter, like the other forms of social media, is an "interactive computer service" under the statute and someone who retweets content is a "user" of that service. What Section 230 does not protect is the "information content provider," i.e., the person who originally writes a post on social media. Merely retweeting someone else's post does not make one an "information content provider."

Section 230's application becomes more complicated when a retweeter adds new content to the original post. "The act of retweeting can fall outside of the immunity provided by the CDA when a user couples the retweet with his or her added speech." In the Holmok case, the retweeter allegedly added a tag for the local high school. Nevertheless, the court found in favor of the retweeter, because the addition of the tag did not "substantively alter or add to" the content of the original, allegedly defamatory tweet.


What is clear is that Section 230 protects a user from legal liability for a bare retweet of someone else's post. The original poster is not protected by Section 230's provision. The unsettled issue is when seemingly small additions to a retweet "substantively alter or add to" the original content and thereby lift the legal liability shield for the retweeter.

Consider, for example, the #MeToo tag. Given the same allegations as above, would a court conclude that adding #MeToo to a retweet of another user's post claiming that a teacher acted in sexist ways "substantively alters or adds to" the initial post? To the extent the tag connotes that the retweeter is essentially adopting the claim or vouching for the credibility of the original tweet, that six-character addition may be enough to render the retweet original content not protected by the CDA. These are the sorts of disputes future cases will decide.