Digital Gospel and Section 230
In a world where digital is gospel, blogging, online news, and wikis have become the prophets of a country that worships its broadband. The reality is that when a wiki says it's so, then so it is, that when a bully calls his classmate names on MySpace they are deserved, and that the fate of a presidential election hinges on the favor of a blogger. But what if the information posted is less than accurate, or even honest? In this climate, one should really scratch their heads over the logic of the 1996 Communications Decency Act--the reason why MySpace, Wikipedia, will all escape the wrath of a defamation action.
Under the Act, most "interactive" sites cannot be held liable for the defamatory statements of their users. The Act was borne of the Clinton administration's desire to protect a fledgling online industry that was making economic superstars out of the likes of AOL. The logic was that an entire growth sector should not be penalized for the acts of a few wayward users and that AOL should retain the flexibility to monitor its users, without assuming affirmative liability. As such, a clear distinction was made between print publication and online publications through section 230 of the Act. Section 230 provides that "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." And if that language does not seem concrete enough, the Act preempts state law stating "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The courts have been remarkably e-friendly on the basis of this section and have almost universally applied Section 230 beyond "traditional" Internet service providers, including a broad swath of sites. Hence along with AOL, bloggers, wikis, forums, boards, and a host of other services are shielded by its aegis.
But wait there's more!—Section 230 has even been construed to guard against non defamation actions. These include breach of contract, negligent misrepresentation, business interference, and emotional distress (consider the infamous Star Trek Actress Case, that's a wiki entry unto itself). In one case (Lars Gentry, et al. v. eBay, Inc.) it single handedly blew out two state statutory causes of action and general negligence, sparing Ebay, where autographed sports items dealers misrepresented the authenticity of their wares (California actually has a statute that speaks directly to that issue—how's that for lawyering?). Section 230 came to the rescue of a library on the hook for enabling access to porn, even in the face of the classic public funds doctrine. Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 692 (2001). Not a bad deal for the e-frontier, provided of course you thought everybody with a keyboard, broadband, and a dream had everyone else's best intentions at heart.
When I was an associate I dealt with one of the first cases invoking the Anti Cyber Squatting Act. At that time, the Internet was the wild west, white hats, black hats, bad guys, good guys, and all. In our excitement over the new possibilities, we somehow accepted the notion that people were genuine and that defamation laws were so 20th century. And so the cyber squatting act was a hard won acknowledgement that the Internet needed boundaries just like your driveway and backyard fence.
Indeed seven years later, the Net's not a child anymore and the days of white hats and black hats are long gone. My next blog entry will focus on some high profile and not so high profile instances where Section 230 clearly overextends itself. If it is left unchecked in the spirit of laissez faire policy, it may actually jeopardize the meaningful development of the net.
The electronic Frontier Foundation's Section 230 Blogging FAQ
Under the Act, most "interactive" sites cannot be held liable for the defamatory statements of their users. The Act was borne of the Clinton administration's desire to protect a fledgling online industry that was making economic superstars out of the likes of AOL. The logic was that an entire growth sector should not be penalized for the acts of a few wayward users and that AOL should retain the flexibility to monitor its users, without assuming affirmative liability. As such, a clear distinction was made between print publication and online publications through section 230 of the Act. Section 230 provides that "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." And if that language does not seem concrete enough, the Act preempts state law stating "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The courts have been remarkably e-friendly on the basis of this section and have almost universally applied Section 230 beyond "traditional" Internet service providers, including a broad swath of sites. Hence along with AOL, bloggers, wikis, forums, boards, and a host of other services are shielded by its aegis.
But wait there's more!—Section 230 has even been construed to guard against non defamation actions. These include breach of contract, negligent misrepresentation, business interference, and emotional distress (consider the infamous Star Trek Actress Case, that's a wiki entry unto itself). In one case (Lars Gentry, et al. v. eBay, Inc.) it single handedly blew out two state statutory causes of action and general negligence, sparing Ebay, where autographed sports items dealers misrepresented the authenticity of their wares (California actually has a statute that speaks directly to that issue—how's that for lawyering?). Section 230 came to the rescue of a library on the hook for enabling access to porn, even in the face of the classic public funds doctrine. Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 692 (2001). Not a bad deal for the e-frontier, provided of course you thought everybody with a keyboard, broadband, and a dream had everyone else's best intentions at heart.
When I was an associate I dealt with one of the first cases invoking the Anti Cyber Squatting Act. At that time, the Internet was the wild west, white hats, black hats, bad guys, good guys, and all. In our excitement over the new possibilities, we somehow accepted the notion that people were genuine and that defamation laws were so 20th century. And so the cyber squatting act was a hard won acknowledgement that the Internet needed boundaries just like your driveway and backyard fence.
Indeed seven years later, the Net's not a child anymore and the days of white hats and black hats are long gone. My next blog entry will focus on some high profile and not so high profile instances where Section 230 clearly overextends itself. If it is left unchecked in the spirit of laissez faire policy, it may actually jeopardize the meaningful development of the net.
The electronic Frontier Foundation's Section 230 Blogging FAQ
posted by Kaiser at 5:38 PM
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