Section 230 Does NOT Mean That Online Publishers Have Different Rules

from the common-sense-is-dead dept

Portfolio has a long article about the ongoing battle between two former law school students who were (reasonably) upset at other law school students making fun of them and making rather extreme statements about them on the law school forum site Auto Admit. We've covered this case before -- and think that pretty much everyone has blown the story out of proportion. Almost nothing that was said appears to have actually been defamatory. Obnoxious, sophomoric, disgusting and hurtful -- yes. But not necessarily defamatory (or illegal). And, in pursuing an attack on the site, the women only called a lot more attention to the issue, and ramped up the complaints. Ignoring it almost certainly would have made the issue die down and go away. However, the lawsuits will go on (I mean, of course -- we're dealing with a bunch of lawyers here...). However, I did want to address one thing in the article that is quite troubling:
Were Google and AutoAdmit newspapers or television stations, Heller and Iravani would have had a ready remedy: They could sue. Someone printing or airing falsehoods or statements likely to defame or cause extreme emotional distress couldn't then simply walk away. But different rules apply to internet intermediaries: Websites like Google and AutoAdmit merely deliver content rather than producing it themselves. Just over a decade ago, seeking to encourage the free flow of information on the internet and itself under pressure from telecommunications companies, Congress passed legislation stating that such websites could not be sued for carrying defamatory material. The measure in question is Section 230(c) of what has surely become one of the most striking misnomers on the books: the Communications Decency Act of 1996.
I've heard this attack on Section 230 before and it's wrong. Very, very wrong. There aren't "different rules" that apply (other than in the very technical sense that Section 230 applies online). The point of Section 230 is to enforce common sense. The reason you can blame a newspaper or a television station for defamation is because they have control over what content goes out over the air. The reason Section 230 was put in place was the fear that clueless people (apparently including the author of the article) would think that online tools were somehow the same as publishers who pick and choose every bit of content that goes out. Section 230 is just there because there are too many people without the common sense to recognize that allowing people to sue the service provider would be like suing Nikon if someone beats you up for taking their picture. Or suing Ford if someone rammed you with their car.

In all of those cases, it's about someone using a tool to do something illegal. And so you sue the person using the tool and not the tool itself. All Section 230 does is make that clear. It's just common sense. And yet here we have Portfolio repeating the myth that "the rules are different." They're not. The women in question had every right to sue the individuals who posted the comments (though, you could argue that they would have been a lot better off just letting the idiocy in the comments die out, rather than calling extra attention to it with a lawsuit), but it's common sense that the tool that was used to post those comments is just the service provider and shouldn't have any liability.

This is important, because we're increasingly seeing people suggest that Section 230 needs to be changed somehow -- perhaps even putting in place the DMCA's awful (and all too often abused) "notice-and-takedown" provision. Can you imagine how widely that would be abused in cases of defamation? Especially when people seem to think that any content they don't like must be defamatory? It would be a disaster and would tie up tons of resources for any online site. I can speak from experience on this. Not a day goes by when we don't get angry emails from people who complain about some comment posted on our site, demanding that the comments be taken down. Usually there's no obvious defamation or anything. It's just that the complaining emailer (or caller) is pissed off that someone doesn't like them or posted something true about them. If we had a legal liability in dealing with these complaints, it would cost us a ton of time and resources for no good reason at all.

Section 230 isn't a problem. It doesn't treat anyone "differently." It's just there to enforce common sense for the clueless. For someone to be liable for something against you, such as defamation, it should be the person who actually did the deed -- not the platform that hosted the comment. The fact that some are trying to use this case as an example of why Section 230 needs to be changed is problematic. It seems that they're letting their emotional viewpoint get involved, and believe that because they don't like something online, (a) it must be illegal and (b) someone must get blamed. Unfortunately, being a jerk still isn't illegal online, and liability should be applied to those actually liable. Hopefully those with cooler heads will prevail and keep Section 230 in place, recognizing that it isn't setting up "different rules," but is merely enforcing common sense.

Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Lucretious, Feb 17th, 2009 @ 7:43am

    The first person to post "freedom of speech doesn't allow one to yell *FIRE* in a crowded theater" will be beaten like a rented mule.....

     

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      identicon
      Stuart, Feb 17th, 2009 @ 8:19am

      Re:

      "freedom of speech doesn't allow one to yell *FIRE* in a crowded theater"

      *Ducks*

       

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      identicon
      Oliver Holmes, Feb 17th, 2009 @ 8:23am

      Schenck v. United States

      Freedom of speech does not allow one to *Falsely* shout "Fire" in a crowded theatre.

       

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        Anonymous Coward, Feb 17th, 2009 @ 9:11am

        Re: Schenck v. United States

        Is it legal to shout *FIRE* when I see somebody lighting up their cigar (in a crowded theatre)?

         

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        Anonymous Coward, Feb 17th, 2009 @ 9:15am

        Re: Schenck v. United States

        What about asking the person at the refreshment stand for *WATER* to put out a fire in the crowded theater?

         

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    AJ, Feb 17th, 2009 @ 8:36am

    Well..

    Just set the crowded theatre on fire before you scream "FIRE" and your covered....

     

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    Kirk, Feb 17th, 2009 @ 8:44am

    It is different

    It's semantics and doesn't really change the argument but, there are different rules. The article merely should have pointed out different rules exist because the situations are fundamentally different. Yes, there are different rules. Thank goodness! We should all be upset with the article because it uses a false analogy to make a bogus argument. While you could say that the rules are the same because they would be if the situations were the same, the situations are different, and so different rules are called for. Again, it's semantics but it's the angle that's the least confusing for me. The author of that silly article is a douche bag. I have pictures.

     

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      Mike (profile), Feb 17th, 2009 @ 12:44pm

      Re: It is different

      It's semantics and doesn't really change the argument but, there are different rules. The article merely should have pointed out different rules exist because the situations are fundamentally different

      I don't agree.

      I think the actual rules are the same: if you are making the active decision whether or not to publish the content, you are liable. If not, you are not. The *rules* are the same.

       

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      Anonymous Coward, Feb 17th, 2009 @ 5:51pm

      Re: It is different

      Pics Pleaze

       

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    Jesse, Feb 17th, 2009 @ 9:01am

    Is there a Freedom to Set Fire to Crowded Theatres section in the constitution?

     

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      Anonymous Coward, Feb 17th, 2009 @ 9:08am

      Re:

      How about yelling "Cowded Theater!" to a Constitution set on fire?

       

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      Cipher-0, Feb 17th, 2009 @ 10:05am

      Re:

      No, but you can yell MOVIE in a crowded firehouse.

       

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        Xiera, Feb 17th, 2009 @ 12:54pm

        Re: Re:

        Well played.

         

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          Kirk, Feb 18th, 2009 @ 9:37am

          Re: Well-played

          Yes. Well-played indeed, sir. I understand (I think.) It's the parties and their roles that the article confuses, not the situations. I still think my argument is valid, but yours is more relevant since Section 230 does not change the rules, but clarifies the roles of service providers. In essence, the author of the article completely misses the point of Section 230. Funny.

           

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    Anonymous Coward, Feb 17th, 2009 @ 9:05am

    First let me state that I feel section 230 needs to be in place and should remain so. However, its kind of interesting in how you refer to online providers simply being the tool and compare it to say, suing ford because some rammed you , etc, etc, because, in fact, it does happen. Specifically, firearms manufacturers have been sued because someone committed a crime using a gun they manufactured. The laws used were for product liability, which could be applied to the whole car scenario, and I'm sure, through some twisted form of logic, could also be applied to web service providers. Anway just wanted to post this to get a discussion going.

     

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      Kevin Stapp, Feb 17th, 2009 @ 10:01am

      Re:

      Let's set aside the fact anyone can sue regardless of the merits of the case.

      Manufacturers such as Ford can be sued for liability due to product defect. If someone runs over you because they are drunk then Ford isn't liable. If someone runs over you because the brakes failed due to a faulty design then Ford is liable.

      In the case of gun manufacturers I believe the suits weren't based on product defect but rather that the gun manufacturers were knowingly selling guns they new were being resold through illegal channels. No one is arguing the guns were defective. The guns shoot metal out a high velocity just like advertised.

      Suing Google or Yahoo for defamatory content posted by users is akin to suing PaperMill for someone printing a threatening letter on their paper. So as long as the paper does what is it is advertised to do, which is to hold pencil or ink markings for reasonable amount of time then PaperMill isn't liable for what markings people choose to place on their product.

      What is at issue here is many people mistakenly believe the internet is content publishing mechanism when in fact is a simply a communications platform. Each person who posts content on the web is the 'publisher', the internet is a communications channel used to distribute the publisher's content. We don't expect the phone companies to screen every call for illegal or defamatory content nor would we tolerate the invasion of privacy if the phone companies attempted to do so. Therefore, we should not expect search engines, web sites, etc to police content.

       

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      Anonymous Coward, Feb 17th, 2009 @ 5:56pm

      Re:

      Firearms are specifically designed to shoot, injure, or kill things.

      Internet platforms are meant to facilitate communication.

      Firearm manufacturers were sued because their weapons were shooting, injuring, or killing people.

      The internet platforms because someone thought that some of the communication was offensive.

       

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    PRMan, Feb 17th, 2009 @ 9:51am

    TV analogy

    Actually, I'm pretty sure that when the TV stations have no control (live TV interviews), individual parties have been sued for defamation without the TV station(s) being named in the lawsuit.

     

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    Josh (profile), Feb 17th, 2009 @ 10:27am

    Finally, some sense

    Terrific post - I found the Portfolio article cringe-worthy.

     

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    Sos, Feb 17th, 2009 @ 5:26pm

    Except in this case its a web forum that most certainly includes some form of moderation capability - so the forum owners do have control over the content even if they do not exercise that control.

     

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      Mike (profile), Feb 17th, 2009 @ 5:39pm

      Re:

      Except in this case its a web forum that most certainly includes some form of moderation capability - so the forum owners do have control over the content even if they do not exercise that control.

      Court rulings in the past have found that this doesn't matter (reasonably so). It shouldn't be the tool provider's responsibility to deal with the actions of its users. That would be like requiring Ford to make sure no one drove drunk. It might be a good idea for Ford to do this, but it's not a requirement under the law.

       

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        Sos, Feb 18th, 2009 @ 2:47pm

        Re: Re:

        I agree Mike but I was just exploring the issue that if the website software allows the owners to moderate content the owners may have a social responsibility to ensure that some types of content do not appear on their site. But social responsibilities are not always legal responsibilities are they.

         

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    oh_tempora_oh_mores, Feb 17th, 2009 @ 5:39pm

    Well, yes. And no. Common sense is something that, unfortunately, the US is not really famous for. Add to it the "by the letter of the law" principle, instead of a "by the spirit of the law" one, and you have the field set up for quite a bit of non-sense (if you live outside US, or pain, if you live inside).

     

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    BK, Feb 17th, 2009 @ 9:36pm

    Better Analogy

    There is a guy handing out flyers with defamatory information. There is also a flyer attached to a telephone pole. You can sue the guy handing out flyers as he has direct control of the information. Sueing the telephone company just doesn't make sense. The idea that they would be able to individually inspect every pole is unreasonable, just as it is website to review every post.

     

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    Christopher E. Grell, Feb 18th, 2009 @ 6:50pm

    Section 230

    Your argument that common sense, not Section 230, is the problem, is only half right.
    Internet Website providers, unlike newspapers, are in a different position reqarding control over who publishes what. Consequently, their liability should be different.
    Where your argument fails is that at under Section 230, there is no point at which ANY liability attaches to the ISP or Website provider, no matter how much notice is given to them. If someone is publishing and republishing libelous statements and the Website host or ISP knows that this is going on, under Section 230 there is no duty to stop it no matter how much damage is being done to someone's reputationdamage through false and libelous statements.
    No liability equals no accountability which leaves the Internet anything but, a Communication Decency vehicle.
    The Internet is no longer the wild west of free speech. It is time to but some decency back into it. The only way to do this is to hold those Website hosts and ISP's accountable at some point after being given sufficient notice, that their site is being used to destroy a person's good name, the foundation of a decent society according to the US Supreme Court.
    Indeed, unlike yesterdays news, Website publications stay on line forever. Until the website host starts removing libelous remarks, everyone is at risk of being attacked for any or no reason.
    Everyone should be accountable at some point for damage and harm they are causing. ISP's and website hosts are no exception and should be held to some degree of accountablity
    at some point.

     

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      Forest, Oct 15th, 2009 @ 9:01am

      Re: Section 230

      Christopher, I think you are dead wrong. I run a small forum that I think helps many people, but if it weren't for section 230 I would shut it down immediately. If I were liable for what others said, I would feel very uncomfortable about having anything posted unless my lawyer looked at it. Seriously.

      Similarly, consider these comments, here. In my opinion, there is no way that Techdirt can have someone qualified read every post. Imagine you were an owner of techdirt. Would you really trust anyone else but a lawyer to review problematic posts before posting them? No, you wouldn't. You would simply shut down the forum because the comments don't bring in that much revenue and would rapidly become prohibitively expensive.

      I don't think that inviting lawyers in is the way to solve this. Think about the current state of medical malpractice and the costs that it imposes on our health care system.

      Besides, my understanding of the pre-230 law was that there was already a clear distinction between "publishers" of content and "distributors." Section 230 just says that we are closer to distributors than publishers since we can't afford to have a qualified person review every post before it is posted.

      .... And who would want to wait for their post to be moderated before posting, anyway? We just need to be smart enough to know that anonymous sources shouldn't be trusted.

       

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    PG, Mar 4th, 2009 @ 2:39pm

    It was defamation

    Some of the AutoAdmit comments claimed that the women in question had STDs. That is per se defamation by statute in most states. If you aren't aware that there was defamation on AutoAdmit, you don't know much about AutoAdmit, defamation, or both.

    Moreover, the website owners and administrators did keep a record of IPs for their own amusement and to use against their opponents (e.g. by claiming that a law professor who criticized the site had gone looking for nasty material -- they identified him through the IP associated with his law school). They deliberately stopped keeping those records when they feared a lawsuit was in the works, in order to prevent the identities of the defamatory commenters from being discovered. Similarly, they would moderate the site in order to prevent "outing" of the real names of users whom they liked, but would not moderate the site to remove lies about non-users of the site.

     

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