intellectual property
Written by: Sheryle Levine and Alan Neigher Byelas & Neigher, Westport, CT
The Internet:
Free Speech vs. Anonymity (II)
In our last column, we briefly discussed defamation as an exception to the generalized assertion that freedom of speech permits freedom of all speech. This column will discuss the differences in defamation “protections” (defenses) afforded to “traditional media”, on the one hand, and to internet providers, on the other. Those differences are substantial. n the midst of the internet boom in 1996, Congress passed a remarkable law, the Communication Decency Act of 1996. While much of the new law was devoted to “decency”, its most notable provision was Section 230. It stated that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider.” In one sentence, Congress reshaped the entire foundation of common law underlying defamation, privacy and numerous other concepts of “torts.” Internet service providers (“ISPs”) and “users of interactive computer services” - bloggers, auction sites (e.g., ebay), retailers, social networks - - were granted a new and special status. Online intermediaries, who had historically been the primary targets as defendants by defamation and privacy plaintiffs, are now protected from being treated by state and federal courts as publishers or speakers. Previously, newspaper publishers and news broadcasters were held to account for defamatory letters or utterances by third parties, irrespective of whether those parties were employees of the media organization. Section 230 also states that the same providers and users of interactive comput-
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er services are permitted to voluntarily act “in good faith to restrict access to or availability of material [they might consider] to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable “irrespective of whether” such material is constitutionally protected.” Thus, Congress extended a dynamic and novel setting for ISPs – immunity from defamation, invasion of privacy and other torts, and the freedom to edit, restrict or delete (“in good faith”) objectionable material. Granting some editorial authority over content does not mean that the provider loses its Section 230 immunity. As an appeals court has recently held, the exercise of “a publisher’s traditional functions — whether to publish, withdraw, postpone or alter content” from third parties — does not turn the website into a content provider. This New World of internet immunity has created some anomalous results. A newspaper or broadcast facility may remain liable for third party statements made in a print edition or news broadcast, but remain immune for statements made on its own website. This inconsistency has puzzled courts and commentators since the enactment of Section 230. The best (but not the only) explanation is from a high appellate court:
Section 230 was enacted “to promote the free exchange of ideas over the internet and to encourage voluntary monitoring for offensive or obscene material.” Fair enough. But the question remains: is someone less defamed over the internet than for the same statement in a newspaper or broadcast? That remains, as courts will note, an open issue. Section 230 immunity for websites is not absolute. In 2008, an appellate court held that Roomates.com lost its Section 230 immunity, and was subject to Fair Housing Act liability, by developing and utilizing a multiplechoice questionnaire for users. By directing information provided by users only to other compatible users, matching preferences and excluding incompatible users, Roomate.com was, in part, responsible for discrimination on the basis of gender, orientation, religion and ethnicity. By helping to develop information in the profiles, Roomates.com itself became a “content provider”; accordingly, it lost its Section 230 immunity. The line between a provider who edits and polices its site, and one that is at least in part a “content provider” may not be a bright one. But for purposes of the internet, providing “content” seems to be the demarcation between immunity and exposure to liability.