Defamation in Cyberspace
Certain online communication services, particularly electronic message board systems operators, enjoy new and different legal protections than traditional media publishers.
Common Law Rule
At common law, one who “repeats” the statements of another is just as responsible for their defamatory content as the original speaker. Cianci v. New Times Pub. Co., 639 F.2d 54, 60-61 (2nd Cir. 1980); Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991); Restatement (Second) of Torts § 578 (1977).
The above “liability for repetition” rule is subject to the general principle that to be held liable in defamation one must have “tak[en] a responsible part in the publication,” Lewis v. Time, Inc., 83 F.R.D. 455, 463 (E.D. Cal. 1979), aff ’d on other grounds, 710 F.2d 549 (9th Cir. 1983) (citation omitted), or have “knowledge of the defamatory content,” Sussman v. A.B.C., Inc., 1995 U.S. Dist. LEXIS 21756, *6-7 (C.D. Cal. 1995), thus satisfying “the federal constitutional rule against liability without fault.” Lewis, 83 F.R.D. at 463; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Consequently, those who merely “distribute” statements or publications cannot be held liable for their content unless “they knew or had reason to know of the defamatory statement at issue.” Stratton Oakmont, Inc. v. Prodigy Servs. Co., 23 Media L. Rep. 1794, 1796 (N.Y. Sup. Ct. 1995), citing Cubby, 776 F. Supp. at 139, and Auvil v. CBS 60 Minutes, 800 F. Supp. 928, 931-32 (E.D. Wash. 1992). As a result:
A news dealer [or other distributor, such as a bookstore] is not liable for defamatory statements appearing in the newspapers or magazines that he sells if he neither knows nor has reason to know of the defamatory article. The dealer is under no duty to examine the various publications that he offers for sale to ascertain whether they contain any defamatory items.
Lewis, 83 F.R.D. at 463, citing Restatement (Second) of Torts § 581, comment d (1977) (emphasis added by Lewis).
Section 230: Protection for Online Service Providers
In Section 230(c) of the Communications Decency Act of 1996 (“CDA”), codified at 47 U.S.C. § 230, Congress made clear that “interactive computer services” should not be held liable as “publishers or speakers” of content posted by third parties. That Section provides:
TREATMENT OF PUBLISHER OR SPEAKER. 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.
47 U.S.C. § 230(c)(1), and that:
No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
id. § 230(e)(3)).
Section 230(c) resolved the debate about who is or is not a “distributor” or “publisher” in cyberspace. See, e.g., Stratton Oakmont, 23 Media L. Rep. at 1794 (holding that online service providers can be held to be “publishers” of third party comments); Cubby, 776 F. Supp. at 140 (holding that CompuServe was a distributor, not a publisher, because it had no “opportunity to review” content before it was made available to subscribers, and “no more editorial control … than [a] public library, bookstore or newsstand”). It reflects “the policy of the United States . . . to preserve the vibrantand competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” § 230(b)(2).
Immunity under Section 230 requires that: (1) the defendant is a provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue be provided by another information content provider. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998); Corbis v. Amazon.com, 351 F. Supp. 2d 1090 (W.D. Wash. 2004); Gentry v. eBay, Inc., 99 Cal.App.4th 816, 830 (2002). For full discussion see Judicial Decisions on CDA.
Protections for Restricting Access
The CDA also added a “safe harbor” provision that gives service providers discretion and immunity for controlling or otherwise restricting access to content posted on their services. As Section 230(c) provides:
(2) Civil Liability. No provider or user of an interactive computer service shall be held liable on account of — (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
47 U.S.C. 230(c)(2); see also Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007) (Section 230(c)(2) protects decisions on what ads to display on a interactive computer service); Pallorium v. Jared, 2007 WL 80955 (Cal. Ct. App. 2007) (Section 230(c)(2) protects ICS' anti-spam efforts); Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. 2009) (section 230(c)(2) protects blocking of adware); e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605 (N.D. Ill. 2008). In Mealer v. GMAC Mortgage LLC, 3:10-cv-08172-JWS (D. Ariz. Feb. 24, 2011) a pro se plaintiff fended off a 230(c)(2) defense offered by GMAC, though the court suggested that (c)(1) might have applied if it had been pled; Holomaxx v. Yahoo, 2011 WL 865794 (N.D.Cal. March 11, 2011) (spam filtering); Holomaxx Technologies v. Microsoft Corp., 2011 WL 865278 (N.D. Cal. March 11, 2011) (same); Smith v. Trusted Universal Standards in Electronic Transactions, Inc. (d/b/a TRUSTe, Inc.), 2011 U.S. Dist. LEXIS 26757 (D. N.J. March 15, 2011) (spam).
Section 230(e) generally preempts states from taking any action that is inconsistent with the provisions of the Act. However, the statute expressly states that it has no effect on federal criminal law, intellectual property law, and electronic communications privacy statutes. See e.g. Gucci Am. Inc. v Hall & Assocs., 135 F. Supp. 2d 409 (S.D.N.Y. 2001) (ISP not immune from claims of contributory trademark infringement under Section 230).