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June 15, 2011

Online Defamation and The Communications Decency Act – A SPN Exclusive Article

Online defamation and reclaiming personal and professional reputation are hot-button issues these days. Numerous potential claims are available for use against the poster of an unlawful publication, such as defamation, unlawful publication of photographs, harassment, and trade libel. However, from the perspective of the individual who feels as though they have been victimized, it is the website itself that facilitated and caused the harm. In fact, it is the website itself that, more often than not, permits the unbridled dissemination of harmful content and then actually profits from the spiteful conduct.

What liability does the owner or operator of the website itself face? Much to the dismay of those who wish to pursue the website operator the answer is, more often than not, none.

Pursuant to section 230 of the Communications Decency Act (the “CDA”), website owners are shielded from claims that seek to treat them as the publisher or speaker of information provided by another information content provider. Specifically, the CDA, at 47 U.S.C. §230(c)(1), states 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.” The immunity is limited to providers or users of interactive computer services, and the claims must treat the services as having acted as the publisher or speaker of information provided by someone else.

However there are narrow exceptions to the broad immunity granted to website owners. For example, a website owner may lose CDA immunity if it ceases acting as a mere passive conduit and takes an active role in creating, screening, and/or editing the unlawful content. Despite the broad CDA immunity bestowed upon website operators, such protection also does not apply to intellectual property related claims, such as copyright, trademark, or patent infringement.

These narrow exceptions aside, website operators are not liable for the content posted by its users. In fact, numerous “consumer gripe sites” routinely refuse to comply with court orders that mandate the poster to remove unlawful content. These websites take the position that posters are intimidated into removing content and that the proper response is to merely post a reply. Ultimately, these website operators use the CDA and other legal precedents as a shield, arguing that they are not “information content providers,” have not aided or abetted a defendant, and that no rule requires them to remove content – and so they will not. Refusals such as these have resulted in a number of lawsuits. In short, even when a plaintiff that properly files a suit against a poster of unlawful speech and secures an injunction requiring the third-party poster to remove the defamatory statements, a website operator can refuse to remove the unlawful content. While most websites value their credibility and often remove defamatory or otherwise unlawful content, others do not.

Recently, courts analyzing progressive issues surrounding Internet defamation and online commerce have started to show some signs of splitting on key procedural issues under the CDA. Some Internet defamation lawyers take the position that Section 230, 47 U.S.C. §230, is one of the most important tools interactive services have at their disposal to shield against lawsuits involving content posted on their websites. They believe that the CDA was designed to facilitate the free flow of information online, by alleviating service providers’ liability concerns about large volumes of user-generated content, which they may lack the means or interest to screen and edit. Could disagreement among federal appellate courts about how closely they should be examining interactive services’ business practices and website design features signal a step backward in terms of legal protections for online intermediaries? Could it create disincentive for companies to make their websites more useful, and ultimately hamper innovation?

Courts are clearly beginning to pay attention to how a website is structured. So, while there are splits among the courts regarding how claims against intermediaries are treated, website operators are well advised to develop products to the lowest threshold.

Richard B. Newman is an Internet Defamation Attorney at Hinch Newman LLP. He can be contacted at