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ISP Liability for Internet Defamation

16th December 2010
By Aaron Kelly in Internet Law
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Defamation is a serious problem on the Internet. For the same reason that the Web has become a great tool for research and mass dissemination of information, it has also become a tool for those who would seek to defame others.

Some of the chief problems of websites as a tool for spreading information are that they often allow for users to post content anonymously and, because of their often large size, are usually difficult for webmasters to edit. As a result, publishers in many jurisdictions can be held civilly liable for the content which is posted by their users.

However, for American webmasters Congress saw fit to create Section 230 of the Communications Decency Act, or "CDA," which creates a defense in certain circumstances to people who provide electronic information services such as websites, and who permit access to published defamatory content, but who do not assist in publishing that content.

The relevant words of the CDA which help to protect webmasters and others from the words of another person are, "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 concept is simple. If a person provides or uses an interactive computer service, they will not be considered the publisher of any information that someone else provided, even if they might otherwise traditionally be considered liable.

To more fully understand how the law works, consider how a newspaper might be responsible for a libelous article published in their newspaper, even if it is by a freelance author who does not work for the newspaper. If the same principle were to be applied to something like a blog or a forum, where someone is an author writing for a separate entity which owns the website, the provisions of the CDA would likely absolve the website owner of responsibility that it might otherwise hold for what the defamatory conduct of the author.

Another important part of Section 230 of the CDA is its protection for editors. Although a website could not normally be considered the provider of defamatory content posted by an author, an editor of a website might very well be considered to be the content's publisher if they edit content and then approve of its publication, or edit it once it is already published, since they are contributing to the production of the content and not just the posting of it.

However, the CDA provides that:

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).

In other words, an editor who allows some articles to be published and others not to be, based on the listed criteria above would still not be considered the publisher of content despite the fact that they controlled what could be published and what could not be published.

So, it's clear that there are many benefits to a publisher resulting from the CDA protections, but what about the CDA from the perspective from someone who has been libeled and who wishes to take legal action?

It should be self-evident that an Act which creates new defenses to defamation for Internet publishers is going to create a problem for people who have been defamed.

Most importantly, a person who has been defamed is not going to be able to sue a webmaster for content which is published on their website unless they can establish that webmaster was responsible for its publication. This means that certain content is not actionable in relation to the webmaster, for example:

-Forum posts by various users
-Blog posts by guest authors
-Defamatory advertisements by competitors

For this type of content, people usually cannot sue a webmaster. Instead, it must be determined who wrote the defamatory content, and that person must be sued. If an anonymous person made a forum post which was defamatory, a lawsuit should be launched against John Doe, aka [Insert username here], and their identity should be sought during the discovery process.

It should be noted that although providers of an interactive computer service cannot be considered the publisher of this material, they may be still held liable for other reasons. For example, if the author of a defamatory post is liable for defamation, and the webmaster is also their employer and paying them to write the content, then the webmaster may be held vicariously liable for their employee's actions notwithstanding that they would otherwise have a defense to a defamation lawsuit.

That sums up Section 230 of the Communications Decency Act, as it relates to defamation. Just remember these important tips when dealing with Internet defamation:

1) Time is of the essence. It's important to file suit as soon as practical when defamed, so that the statutory period in which to take action does not expire and prevent you from seeking redress from the person who defamed you.

2) Section 230 doesn't protect all illegal activity committed by others on a webmaster's website. For example, a webmaster that permits a criminal act or intellectual property infringement on their website may still be held liable for it.

3) If you are sued or plan to sue, always obtain qualified legal counsel. Although you may think you have a case or know how to defend yourself in a case, "A person who represents himself has a fool for a client." Make sure that you seek out an attorney who specializes in Internet law and is licensed to practice in the appropriate jurisdiction before you decide what to do in your case.
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