The legacy of Zeran. ISPs live happily everafter.

            Whether or not Congress realized that Section 230 would be interrupted as giving ISPs’ and Web publishers’ immunity from defamation regardless of harm is open to debate.  The courts, however, have certainly interrupted it that way. Although, as Cannon indicated, during the legislative process, there was some concern and input from the ISP industry after the Stratton Oakmont decision.  By the CDA’s pro Internet development language in part (a), it is clear that they intended to provide ISPs with as much freedom as possible and to promote and protect it, baring criminal activity. In the Zeran case, the appeals court noted,

“Congress’ purpose in providing the (Section) 230 immunity was …evident.  Interactive computer services have millions of users…  The Amount of information communicated via interactive computer service is therefore staggering.  The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.  It would be impossible for service providers to screen each of their millions of postings for possible problems.  Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.  Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.” (Zeran v. AOL)

By giving ISPs and Internet publishers carte blanche to take down offensive materials without making them liable for First Amendment lawsuits, Congress also exempted them from liability for defamation that appeared on their Web sites from internet content providers.  It was not Congress’s intention to give immunity to those individuals (content providers) who posted allegedly defamatory comments on Web sites.  Although Congress defined Internet content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service,” they didn’t expressly say they were not immune from liability under Section 230. (Section 230 (f) (3))  Perhaps they should have.  Congress only says that ISPs aren’t responsible for contented provided by “another information content provider.” Content providers, or third parties, were left alone for courts to apply common law principles.  The problem of anonymous content providers wasn’t considered in Congresses’ actions.  The Zeran verdict affirmed Congress’s intention.

A case that followed on the tail of Zeran was Blumenthal v. Matt Drudge and America OnlineInc., decided April 22, 1998. A U.S. District Court judge granted AOL’s motion to dismiss because of AOL’s CDA immunity, but denied Drudge’s motion  to dismiss or change jurisdiction.  The case involved an article in Matt Drudge’s popular online news/gossip Web site, “The Drudge Report.” Drudge published allegations that accused Sidney Blumenthal, White House Assistant to the President, of spousal abuse.  In spite of Blumenthal’s public figure status, he and his wife, Jacqueline sued Drudge and AOL, the Web host for this allegedly defamatory article.  The court determined that AOL was not responsible for the content, was a Web publisher and therefore receives immunity under Section 230.  Drudge, however, was deemed an “information content provider,” as defined in Zeran.  In other words, the Blumenthal’s had a case against Dredge, but not AOL.  The Blumenthals sued Dredge and eventually settled out of court.

ISPs were also immune from lawsuits involving criminal activities on their sites.  In a 1998 case, Doe v. AOL and Richard L. Russell, the mother of a minor, John Doe, appealed a lower court decision that dismissed a complaint against AOL because it retroactively applied Section 230 of the CDA which gave immunity to AOL.  Jane Doe sought to reverse the decision and hold AOL accountable to recover for “emotional injuries suffered by her son…”when a predator lured her 11-year-old son “and two other minor males to engage in, sexual activity with each other and with Russell.”  Russell photographed and videotaped the act and used AOL’s chat rooms to market and sell the photographs and videotapes.  The appeals court upheld the lower court’s decision, again citing Zeran

One interesting aspect of the above cases is that all three of these early CDA cases challenged an ISPs immunity as a distributor.  Although the text of Section 230 didn’t specifically use the word “distributor,” the courts in these precedent-setting cases deemed them to be one in the same.

Plaintiffs in lawsuits continue to challenge the publisher/distributor status of ISPs even when an ISP knows the site contains defamatory material. (Rustad and Koenig)

At least one verdict challenged the findings in Zeran.  In Grace v. eBay, Inc., 2004, a California appeals court took issue with Zeran’s distributor status finding in a case involving buyer/seller defamatory feedback.  The court said, “There is no indication, however, that Congress intended to preclude liability where the provider or user knew or had reason to know that the matter was defamatory, that is, common law distributor liability. We conclude that section 230 provides no immunity against liability as a distributor.  We decline to follow Zeran v. America Online, Inc…”  The court did, however uphold eBay’s user agreement which released eBay and administrators from liability.  The plaintiff lost, eBay was entitled to costs. This case poses an interesting challenge to Zeran and might be a reason that cases continue to challenge the distributor status.  There is at least a chance that the plaintiff might win.

Another, more recent case should be sending a chill down the spines of professional Internet rating sites.  In Fair Housing Council v. Roomate.com, filed May 5, 2007, an appeals court reversed a lower court decision that gave Section 230 immunity to  roommate.com, a roommate search service that pairs people who are looking for roommates.  The Fair Housing Council claims the postings from third parties that contained comments that violate the Fair Housing Act.  The lower court granted the site Section 230 immunity.  The plaintiffs appealed.  The appeals court concluded that Roommate.com should receive Section 230 immunity for third party comments posted in a “comments” section. But the appeals court also determined that Roommate.com’s categorized emails to its member subscribers made the site an “active participant,” and therefore not immune under Section 230.  The court said:

“… search mechanism and email notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals.  By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing. (Fair Housing Council v. Roommate.com)

Roommates.com has at least some similarities with professional Internet rating sites.  They both offer categories for information and ratings and they both offer a section for the poster to comment.  The professional rating sites funnel professionals based on location, but do not do an extensive filtering based on personal attributes.  They also do not send emails to member users with information about professionals, only about changes in the site.  It would be a stretch to try to claim that professional Internet rating sites should be denied Section 230 immunity based on the above case.  What this case and Grace represent, however, is a sort of chipping away at immunity granted for distributor status.

In spite of those cases that dared to take a more pragmatic view of Section 230, Zeran’s legacy lives on.  In, Austin v. CrystalTech Web Hosting, decided in 2005, after Grace, an Arizona Superior Court upheld a lower court finding against plaintiff, Mark A. Austin’s contention that CrystalTech, an ISP, was exempt from Section 230 immunity because the Web hosting company acted as a distributor rather than a publisher of defamatory statements made by a competitor of his travel service. Austin sued CrystlalTech for hosting a competitor’s alleged defamatory statements on its site.  The statement alleged that “Bali officials were going to file criminal charges against Austin.” The court said that with Section 230 of the CDA, Congress abandoned the Common Law status of distributor liability for knowingly distributing defamatory material, citing Zeran. This decision, and many before and after it, continued the legacy of Zeran, a benchmark for deciding cases involving Internet defamation.  Whether common law is completely abandoned in Internet cases remains to be seen.

An end to accountability

The courts’ interpretation of the CDA has led ISPs to disregard accountability.  Section 230 gave courts an easy way out.  As cases of serious Internet libel accusations came before courts, judges summarily dismissed them, even though the libel that was perpetrated on sites such as Internet bulletin boards and chat rooms was personally and professionally damaging.  Because of CDA immunity, ISPs have no incentives to police their site even after they were notified of objectionable material. ISPs have no obligation to identify the writers of allegedly defamatory postings unless subpoenaed. In other words, ISPs are off the hook. (Rustad and Koenig, “Rebooting Cybertort Law” )   The professional rating sites discussed here create an image that postings are reviewed.  However, reputation damaging opinions exist throughout all four sites discussed in this paper.

It seems logical that ISPs are the best line of defense against Internet harm created by alleged defamation activity. (Rustad and Koenig,  Lidsky, Schruers) First, in most cases, ISPs can locate the writer through the user’s Internet Protocol (IP) address as long as the ISP keeps records.  According to a Comcast email requesting information on IP address availability, Comcast keeps IP information for 180 days. (Comcast email, 8/6/06)

Trust and entertainment make strange bedfellows

Besides the immunity from lawsuits granted by Section 230, ISPs and for-profit online services that solicit third party comments have two other lifelines, trust and their value as an entertainment venue.  Trust in online venues means that users can feel safe from virus, spyware and fraudulent email solicitations.  It also means customers can trust the site to keep any personal information private. Administrators want their users to believe that these sites are secure and free of spyware and virsus.  Comcast’s site features a link to extensive material on safety, including email warnings and free security downloads. (Comcast.net)  America Online offers, “The most comprehensive free online security tools.” (AOL.com) Earthlink also offers security information and free and free downloads. (Earthlink.net)

Customers also want to feel secure that their personal information, including their identities will not be revealed.  ISPs and online services, however, aren’t so quick to point out that if the law requires them to do so they will reveal the identities of users with or without users’ permission.  This information is buried in the ISP’s “Privacy Policy” usually printed in very small type located in the most insignificant place possible, at the bottom of the page.

Online services, such as professional rating cites, have a two tier customer base.  They have customers who are members who have enhanced privileges and customers who merely visit the site, but can still post ratings and comments.  Members need to reveal personal information, such as names and email addresses in order to sign up.  If you are a member of RateMyProfessors.com., for example, you can view all comments about a particular professor.  A non-member only gets to see three comments.  It is likely that plaintiffs in a defamation lawsuit would have a better chance of obtaining the identity of a poster if he or she were a member. Plaintiffs who sue non-members would likely only be able to obtain a poster’s IP address.  So, anyone who wants the added features also opts for added risks that his or her identity might be easier to obtain.

RateMDs.com’s privacy policy states that they “…will not sell or rent your personally identifiable information to anyone.”  Then they state that they will give out personal under certain circumstances, such as with the customer’s consent, and for “subpoenas, court orders or legal process.”Administrators of Ratingz.net note in the “FAQ” section that they will not “give out identifying information on a rater without a court order (which has never happened) unless there is a threat of physical violence in the comment.” 

It is up to the plaintiffs and their attorneys in defamation cases to get a court order to force the ISP to reveal the identity of a writer.  Once a writer is identified, the plaintiff can theoretically sue the writer.  If the process of obtaining a subpoena takes longer than the records are kept, the plaintiff might be out of luck.  Additionally, noted Fred von Lohmann in his column on Law.com, an ISP might not be in the home state of the plaintiff, which means he or she needs to get legal council out of state.  In fact, the ISP might be in another country, which complicates the matter even further.  Once a subpoena is granted, the defendant has the right to attempt to quash the subpoena, which also uses valuable time. (von Lohman)

Comcast also said it would release IP information to legal authorities only through a “valid legal process.” AOL takes a similar stance in its “Privacy Policy.” It states, “The contents of your online communications, as well as other information about you as an AOL Network user, may be accessed and disclosed in response to legal process (for example, a court order, search warrant or subpoena)…”

With a  extra time and money, it is possible to find an anonymous poster. ISPs are the “deep pockets” of the liability chain. Your average Internet poster might not be in a financial position to pay monitory restitution.  For example, many students are in debt before they graduate.  Their ability to pay large sums of money for damaged reputations is limited.  The old saying, “You can’t squeeze blood out of a turnip,” holds true here. In contrast, AOL, a major ISP and subsidiary of TimeWarner is a multi-billion dollar company. Online professional rating sites certainly aren’t billion dollar businesses, with the exception of RateMyProfessors.com which is owned by MTV.  If the sites were held more accountable for content posted on their sites, they might be more willing to police their sites better.

 

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