Rules
What Section 230 means for Americans whose photos are reposted
Creator rights and image consent online turn on Section 230: platforms are immune for reposts, but FOSTA-SESTA, criminal and IP exceptions cut in.
What to take away
- Section 230 shields the platform. It does not shield the person who reposted your photo.
- Subsection (c)(1) blocks claims that treat a platform as the publisher of someone else's post. Subsection (c)(2) protects good-faith removal.
- Notice alone does not create platform liability for a defamation or privacy repost.
- FOSTA-SESTA, passed in 2018, added a narrow sex trafficking claim that rarely fits an ordinary repost.
- Your realistic claims run against the reposter, under copyright or a state right of publicity.
What the statute says about your repost
Section 230 protects the platform, not the reposter. The reposter is the speaker for their own post. The text is short and worth reading before you argue about it: 47 U.S.C. § 230.
What it shields
- (c)(1)
- A provider treated as the publisher of another's information
- (c)(2)
- Good-faith restriction of material a provider calls objectionable
Effect on a repost
- (c)(1)
- The forum keeps your photo up and stays immune
- (c)(2)
- The forum removes your photo and stays immune
Two Shields of Section 230
(c)(1) Carrying content
- Who is protected
- Provider or user
- What it blocks
- Publisher/speaker liability
- Trigger
- Third-party content
- Examples
- Hosting, indexing, recommending
- Constitutional test
- Not required
(c)(2) Restricting content
- Who is protected
- Provider or user
- What it blocks
- Liability for good-faith removal
- Trigger
- Voluntary restriction
- Examples
- Obscene, violent, harassing material
- Constitutional test
- Not required
A platform can rely on either subsection. Leaving the image up falls under (c)(1). Taking it down falls under (c)(2).
Two definitions decide these cases. An interactive computer service is any system that lets multiple users reach a server.
An information content provider is anyone who created or developed the content, in whole or in part. The ownership and consent checklist lists what to gather before you argue either role.
Where a court draws the line between platform and user
The reposter is the information content provider for that post. The platform is the interactive computer service. Under (c)(1) the platform is not the publisher, even when it hosts, indexes, recommends or monetizes the post.
A demand letter aimed at the platform usually fails. The same letter aimed at the reposter sometimes works, because the reposter made the choices that caused the harm.
The line moves when the platform develops the content. A site that writes the caption, crops the image or folds a repost into a promotion may lose (c)(1) for that material.
A refusal to remove an image is also a publisher's decision, and (c)(1) blocks liability for it.
Not every reuse is a repost. An embed, a screenshot and an off-platform download raise different questions, and reuse types compared sets out how each is treated.
Example: the Austin photographer and the forum repost
A photographer in Austin finds her portrait reposted on a forum without credit. She works through a fixed order.
- Save the original file with its metadata. Then capture the repost URL and a timestamped screenshot.
- Send a DMCA notice to the forum's registered agent, naming the work and the copy.
- Send the reposter a written demand for removal, and keep a copy of it.
- Check your state right of publicity statute if the repost sits beside advertising or a paid product.
- Register the photograph and weigh a copyright suit only if the repost continues and the likely damages justify the fee.
Her privacy claim against the forum is barred, because the forum is an interactive computer service. Her copyright claim against the reposter is not. Reposts often come back stripped of credit, and assumed permission and incomplete deletion problems explains why a removal rarely holds.
The exceptions that survive the shield
Section 230(e) lists what immunity does not cover. Subsection (e)(1) excepts federal criminal law, but not state criminal law. A state prosecution of a platform over user content still meets the (c)(1) bar.
Subsection (e)(2) excepts intellectual property law, so a copyright or trademark claim is not barred. The platform keeps its separate defense under the DMCA safe harbor in 17 U.S.C. 512.
FOSTA-SESTA added subsection (e)(5) in 2018. A civil claim under 18 U.S.C. 1595 survives when the conduct violates the federal sex trafficking statute.
FOSTA-SESTA Changes to Section 230
- 2018FOSTA-SESTA becomes law
- AddedSubsection (e)(5) carve-out
- AddedNew section 2421A criminal charge
- EffectFederal sex trafficking civil claims survive
- LimitOrdinary reposts still immune
The carve-out is narrow and does not cover an ordinary repost or a stolen selfie.
California Civil Code Section 3344 gives a claim for unauthorized use of a photograph or likeness in advertising or on goods: California Civil Code § 3344. Other states differ in scope and duration.
What notice changes, and what a counter-notice does
Notice does not strip immunity for a defamation or privacy repost. It triggers the platform's own rules and, for copyright, the DMCA process.
A valid notice under 17 U.S.C. 512 requires the platform to act expeditiously. The reposter can answer with a counter-notice, and the material can go back up. The Copyright Office explains both steps: DMCA overview.
Because a counter-notice is common, secure your evidence before the image disappears. The takedown and state report walkthrough covers the filing sequence and what a state criminal report adds.
