Status: Introduced February 1996 by Senator James Exon (D-Neb.) and revised by Representatives Christopher Cox (R-CA) and Ron Wyden (D-OR),Signed by Pres. Clinton, Feb. 1996
Setting the stage for an end to accountability on the Internet – Opening doors to Internet defamation
This quote might seem innocuous, but it had major implications for the direction of Internet libel law. It was just one piece of evidence exemplifying the great pains that one of the early Internet Service Providers, Prodigy Services Company, took to edit or remove offensive or libelous material from its bulletin boards. In the end, that effort shot them in the foot. The above quote was from an instruction manual, “Bulletin Board Leader Survival Guide,” for monitors of Prodigy’s site. The case, Stratton Oakmont, Inc. v. Prodigy Services Company, involved a company, Stratton Oakmont, that was libeled on a Prodigy financial community bulletin board by an anonymous poster. The issue before the court was whether Prodigy acted as a “publisher” in the traditional sense of the word or merely a “distributor,” similar to a bookstore or newspaper stand. The New York Supreme Court found Prodigy, an Internet Service Provider, was acting as publisher because “Prodigy … exercised editorial control over the content of messages posted on its computer bulletin boards…” (Stratton Oakmont, Inc. v. Prodigy) Of prime importance in this case was that this policy was stated on Prodigy’s website and made available to its member subscribers. The decision on this case rested on a 1991 case, Cubby v. CompuServe, also an early Internet Service Provider. The difference was that CompuServe made no such claim to edit material. In that case, the U.S. District Court, N.Y., determined that CompuServe acted as a distributor, much the same as a bookstore, and therefore was not liable for the defamation from third parties that appeared on its bulletin board. (Cubby v. CompuServe)
Under common law distributors have limited liability in a defamation lawsuit. The Restatement (Second) of Torts, Section 581 “Transmission of Defamation Published by Third Person,” states, “one who only delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.” (The Restatement (Second) of Torts, Section 581)
Distributors or Publishers – Before the CDA
In the offline world it’s easier to distinguish between distributors and publishers. Distributors can be businesses that distribute publications to bookstores and newspaper/magazine stands. Bookstores and newspaper/magazine stands are also distributors of printed materials with the purpose of getting these publications in the hands of customers. While these offline venues are different in physical appearance than their online counterparts, they share one important characteristic with online distributors. Both venues handle large volumes of publications and information which inhibits the ability to police contents of publications for objectionable content including defamation, obscenity and plagiarism; unless they are notified and asked to remove the publications in question. Offline distributors have been named in lawsuits involving pornography, plagiarism and defamation. Under common law, the major legal criteria for defendant/distributor liability is the ability to know that the material is objectionable, how quickly the defendant acted to remove the publication in question, when informed, and whether banning the publication violated the First Amendment. (See Lerman v. Chuckberry, Smith v. California and Lerman v. Flynt Distributing Co., Inc.)
Enter, the Decency Debate
The long legislative battle to regulate the Internet began the around same time as the Prodigy decision, in 1995. Part of the 1996 Telecommunications bill, the CDA was introduced to control or eliminate the availability of pornography on the Internet to children under age 18. (Cannon, 1995) In February 1995, Senator James Exon (D-Neb.) introduced the Communications Decency Amendment, fearing the affect that the availability of pornography on the Internet would have on children. Besides indecency on the Internet, Congress and the ISP industry were wary about the liability dilemma created by the Cubby/Stratton Oakmont decision. In his article on the early history of the CDA, Robert Cannon said that the Stratton decision would create a “Hobson’s choice” for the ISP industry. An ISP could create a service that is safe for children and act as publisher, or do nothing to protect itself from liability.
To rectify this problem Representatives Christopher Cox (R-CA) and Ron Wyden (D-OR), introduced Section 230 as an Amendment to the DCA which was part of the Telecommunications Act of 1996. Congress passed the act on February 1, 1996 and President William Clinton signed it on February 8, 1996. CDA was challenged a week later by the ACLU in ACLU v. Reno, other rights organizations and from individuals who were fearful of First Amendment violations arising from the encouragement this bill gave to ISPs and individuals to block Internet content they deemed objectionable. An injunction was granted on June 26, 1997. The Cox/Wyden Amendment, Section 230 of the CDA, survived. (Schyruers, 2002) ISPs were freed from liability for talking down objectional material and they were mandated to provide customers with “parental control protections (such as computer hardware, software, or filtering services)…” (Section 230, (d) “Obligatoins of interactive computer service.”)
With Section 230, Congress set policy that recognized the tremendous potential of the Internet to citizens and the need to promote and encourage its development. (Section 230 (a) and (b)) This new policy would free ISPs from the fear of potential First Amendment lawsuits arising from taking down sites deemed objectionable by site administrators. Section 230 of the Communications Decency Act of 1996 exempts Internet Service Providers and their users from liability for material posted on a Web site hosted by an ISP. Section 230 (c) “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material” and has three important clauses for the purposes of this paper. It states:
(1) TREATMENT OF PUBLISHER OR SPEAKER – 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.
(2) CIVIL LIABILITY – 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 protection; 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).
Paragraph (A) of Section 230 allows ISPs to take down offensive Websites and postings. It allows ISPs and technology designers to create, distribute or provide information about Web blocking methods to their users without fear of initiating First Amendment lawsuits. Section 230 also makes it harder for victims of defamatory statements to win lawsuits.
Section 230 contains areas of ambiguity that might have resulted from Congresses’ lack of knowledge about this new communications technology as was suggested in early articles by Robert Cannon and Sean J. Petrie. Cannon stated that Senator Exon “apparently” had no Internet experience. Petrie stateds that Congress did not understand how the Internet worked. Although the ambiguity of Section 230 will be discussed in more detail in Part V, it is worth mentioning here to set the stage for court cases to follow.
In (1) “Treatment of publisher or speaker,” Section 230 exempts “providers” and “users” form liability for “any information provided by another information content provider.” (Section 230 (c) (1)) The word “user” is troubling because in today’s Internet lingo, a “user” could be construed to be an Internet content provider. Anyone who posts a rating on an Internet rating site is a “user,” of a computer service. It was the courts that determined the difference between “user” as a person, or third party, who actually writes the defamatory comment and “user” as a company who provides the Website for the comment, such as RateMyProfessors.com, Amazon.com or eBay.com.
The other issue is that the policy didn’t deal with the distributor versus publisher issue. The policy’s definitions offer little help. Congress defined “Interactive computer service,” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”(emphasis added) (Section 230, (f) Definitions, (2) Interactive computer service) By adding “libraries,” Congress might have attempted to deal with distributor liability, however, this explanation was not mentioned in the court cases reviewed for this article.
Section 230 offered no avenues for arbitration. Congress did not delegate institutional authority to oversee the CDA. The only requirement stated in the policy is that interactive computer services provide customers with the names of “commercially available” blocking or filtering software. There is no stated penalty, however, for not complying with this requirement.
In a way, Congress chose to step out of its institutional role as policy makers and allow the courts to clarify definitions and liability issues which brings us to a first attempt to fine tune these issues.
Zeran v. America Online, Inc.: Taking the CDA for a test drive
Kenneth W. Zeran was in the unfortunate position of being victimized by an Internet user, America Online, and eventually, the courts. His was the first case to test the newly enacted CDA, Zeran v. America Online, Inc. Kenneth Zeran, a Seattle business man, was defamed on an AOL bulletin board in April 1995 when an anonymous prankster posted an advertisement that described shirts for sale featuring “offensive and tasteless slogans” (Zeran v. AOL) relating to the bombing tragedy at Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995. The ad listed Zeran’s home telephone number as the place to order the shirts. As would be expected, Zeran received scores of angry calls and some included death threats. Shortly after that the ad appeared, Zeran notified AOL and the offensive material was eventually taken down. Several other ads followed. Zeran sued AOL in April 1996,contending that that Section 230 didn’t apply to this case because the events happened before the CDA was enacted, AOL was negligent because AOL refused to post retractions to screen for similar postings, and state law requires distributors to “refrain from distributing material they know or should have known was defamatory.” (Zeran) The case was decided on March 21, 1996. Zeran lost the case but the legal framework was established for deciding CDA cases.
The major precedents decided by the Zeran court were that state law did not preempt the CDA, and the CDA grants immunity to ISPs whether they act as distributor or publisher. Zeran also lost his argument that his case began before the CDA was enacted. Zeran filed an appeal in the fall of 1997. Zeran again argued that AOL was a distributor not publisher because he notified AOL about the defamatory statements on its bulletin board, “they had actual knowledge of the defamatory statements upon which liability is predicated.” (Zeran) The appeals court further noted that Zeran could sue the poster, if he could identify that person, which he could not. The appeals court ruled against Zeran on November 12, 1997, agreeing with the lower court and citing ISP immunity granted by Section 230 of the CDA. Zeran set the stance courts would take in hundreds of defamation cases that followed. In fact, it’s difficult to find a case where Zeran isn’t referenced. It has replaced or is equal to the common law recorded in the Restatement (Second) of Torts as the gold standard for deciding defamation cases on the Internet.