Defamation Liability

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Defamation Liability

Before and After CDA 230

By Richard Warner

Tutorial


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Defamation on the Internet

Commit defamation was one of the first things people did whenthe Internet put inexpensive, worldwide communication in theirhands.

Stratton v. Oakmontillustrates the approach the law took to thisproblem in 1995. An unidentified user of the ISP, Prodigy, made

the followingfalseclaims on a Prodigy bulletin board: that astock offering by the investment firm, Stratton, was a "majorcriminal fraud" and "100% criminal fraud"; that the president ofStratton was "soon to be proven criminal"; and, that thecompany was a "cult of brokers who either lie for a living or getfired."

Assume that the unidentified user committeddefamation. Stratton sued Prodigy, not the unidentified user, fordefamation.


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The Prior Law

Under the law that applied at the time, whether Prodigy wasliable for defamation depended on whether it waspublisherora distributor.

A publisher is an individual or entity that not only distributes

content, but also reviews and edits that content.

Prodigy reviewed and edited the content it distributed, so, bythe above definition, Prodigy is

(a) not a publisher.

(b) a publisher.


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Correct!

Correct. Prodigy reviewed and edited thecontent is distributed over its web site;indeed, Prodigy emphasized this point in itsmarketing, where it portrayed itself as afamily oriented computer network thatprohibited certain types of potentially

offensive content.

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Liability of Publishers

for Defamation

Under the law in 1995, a publisher of defamatory material is,in the words of the Stratton court, subject to liability as if hehad originally published it. [Cianci v. New Times Pub. Co.,639 F.2d 54, 61; Restatement, Second Torts 578(1977).] The court found that Prodigy was a publisher andhence liable for the defamation.

If the court had not found the Prodigy was a publisher, but amere distributor, Prodigy would have been liable only if itknew, or should have known of the statements and of their

defamatory character. As the court explains, a distributor, ordeliverer of defamatory material is considered a passiveconduit and will not be found liable in the absence of fault.
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Zeran v. America Online

The 1997 case, Zeran v. America Online, concerned an anonymousposting on an America Online bulletin board. The posting appeared afterthe 1995 bombing of the Federal Building in Oklahoma City; it offered tosell Oklahoma T-Shirts bearing offensive slogans (two of the leastoffensive being, Rackem, Stackem, Packem and Visit OklahomaItsA Blast). Zerans home phone given as the contact. Zeran had noconnection with the posting. As a result of the posting Zerans life

became a nightmare. His phone rang constantly; callers expressedoutrage, and some threatened to kill him. The constant calls preventedhim from conducting the business which he ran from his home.

Zeran sued AOL for defamation. To see the effect of CDA 230, ask: IsAOL is the provider . . . of an interactive computer service?

(a) Yes

(b) No


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Correct!

Correct. As an ISP, AOL provides a computer service whichis interactive in the sense that the end-users cancommunicate with others in a variety of ways using theservice, including posting messages on AOL bulletin boards.

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Content Provided By Another Information

Content Provider

Under CDA 230, No provider . . . of an interactive computerservice shall be treated as the publisher or speaker of anyinformation provided by another information contentprovider.

The anonymous posting on the AOL bulletin board

(a) was information provided by another information contentprovider.

(b) was not information provided by another informationcontent provider.


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Correct!

Correct. The anonyomous poster was the informationcontent provider, not AOL, so the anonyomous poster isanother (that is, not AOL) information content provider.

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Publisher or Speaker?

Does Not Matter

Recall Stratton, where the court notes that a publisher ofdefamatory material is subject to liability as if he hadoriginally published it.

Under CDA 230 is not subject to liability for defamation as if

it had originally published the defamatory material.

(a) True

(b) False


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Distributor Liability?

Recall that there are two ways for a distributor of informationto be liable for defamation. The distributor can be liable as apublisher, or as a mere distributor. A mere distributor is liablefor defamation only if the distributor knew, or should haveknown of the statements and of their defamatory character.

The text of CDA 230

(a) explicitly discusses distributor liability.

(b) does not explicitly discuss distributor liability.


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Correct!

Correct. Under CDA 230 no provider or user of aninteractive computer service shall be treated as the publisheror speakerof any information provided by another informationcontent provider.

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Correct!

Correct. Nothing in the language below explicitly applies todistributor liability:

No provider or user of an interactive computer service shall betreated as the publisher or speaker of any information

provided by another information content provider.

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Distributor Liability

Possible for AOL?

So, as far as the explicit words of the section are concerned, itwould be possible for AOL to be liable as a distributor if itknew, or should have known of the statements and theirdefamatory content?

(a) Yes

(b) No


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Correct!

Correct. Nothing in the explicit language of the section itselfprevents imposing such liability.

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Zeran v. AOL

On Distributor Liability

The Zeran court notes the CDA 230 does not explicitlyaddress distributor liability, but it holds that imposingdistributor liability would be inconsistent with the legislativeintent behind CDA 230. The court says it would not imposesuch liability even if even AOL knew, should have known, ofthe defamatory statements.


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Barrett v. Rosenthal

In an opinion sharply critical ofZeran, a California AppellateCourt held that CDA 230 did not prevent them fromimposing distributor liability for defamation. The CaliforniaSupreme Court reversed the decision, however. Whileacknowledging that it may well be that ISPs and otherproviders or users of an interactive computer service shouldnot be shielded from distributor liability, the Supreme Courtheld that the legislative intent to provide such a shield wasclear.


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Communications

Decency Act 230

ISPs lobbied Congress to overturn Stratton. They argued thatso much information flowed through their systems thatimposing publisher liability for defamation would stunt thegrowth of the Internet as they struggled with anunsupportable technological and economic burden. Theargument succeeded. Stratton was overturned in 1996 byCommunications Decency Act 230 (47 U. S. C. 230):



The following questions work through this section.


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You have completed this tutorial.


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Incorrect.

Incorrect. Prodigy reviewed and edited the content

is distributed over its web site; indeed, Prodigy

emphasized this point in its marketing, where it

portrayed itself as a family oriented computer

network that prohibited certain types of potentially

offensive content.

back


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Incorrect.

Incorrect. As an ISP, AOL provides a computer servicewhich is interactive in the sense that the end-users cancommunicate with others in a variety of ways using theservice, including posting messages on AOL bulletin boards.

back


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Incorrect.

Incorrect. The anonyomous poster was the informationcontent provider, not AOL, so the anonyomous poster isanother (that is, not AOL) information content provider.

back


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Incorrect.

Incorrect. Under CDA 230 no provider or user of aninteractive computer service shall be treated as the publisheror speakerof any information provided by another informationcontent provider.

back


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Incorrect.

Incorrect. Nothing in the language below explicitly applies todistributor liability:



back


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Incorrect.

Incorrect. Nothing in the explicit language of the section itselfprevents imposing such liability.

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Defamation Liability