The Wisconsin Supreme Court Gets Section 230 Right

from the careful,-clear,-cogent-analysis dept

We've written a few times about an unfortunate case out of Wisconsin. Someone used the Armslist platform to find a gun to buy and then killed people with it. This led to a lawsuit against Armslist seeking to hold it liable for this terrible crime, which then led to a ruling by the Wisconsin Court of Appeals that ignored two decades of Section 230 precedent to allow the lawsuit to go forward. Last year the Copia Institute filed an amicus brief urging the Wisconsin Supreme Court to review the Court of Appeals decision, and, after it granted that review, this year we filed another brief urging it to reverse the decision. This week it did.

The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint. [p. 2-3]

The decision was lengthy, and referenced a litany of cases interpreting Section 230, nearly all of which the Court of Appeals had earlier discounted. Like this one, Section 230 cases are often tough cases. Terrible things have happened, and there can be a tremendous, and completely reasonable, temptation by courts to find some way to provide a remedy. Even if it means trying to hold an Internet platform liable, and even if Section 230 should prevent them from doing so.

But as we pointed out in our briefs, there is always more at stake than just the case at hand. Whittling away at Section 230's important protection because one plaintiff may be worthy leaves all the other worthy online speech we value vulnerable. It is protected only when platforms are protected. When their protection is compromised, so is all the speech they carry. Which is why it is so important for courts to resist the emotion stirred by instant facts and clinically apply the law as it was written, so that instead of helping just one person it will help everyone.

Which is what the Wisconsin Supreme Court has now done. As we recently saw recently with the Herrick v. Grindr case, another case with grotesque facts but claims that fell easily within Section 230's intended purview, plaintiffs often try to "artfully plead" around Section 230 to make their complaint seem like something other than trying to hold a platform liable for what another has said online. And like the Second Circuit did there, here the Wisconsin Supreme Court also refused to allow Section 230 to be circumvented.

"[W]hat matters is not the name of the cause of action . . . what matters is whether the cause of action inherently requires the court to treat the defendant as the 'publisher or speaker' of content provided by another." Barnes, 570 F.3d at 1101-02. In other words, "courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant's status or conduct as a 'publisher or speaker.'" Id. at 1102. This rule prevents plaintiffs from using "artful pleading" to state their claims only in terms of the interactive computer service provider's own actions, when the underlying basis for liability is unlawful third-party content published by the defendant. Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); see also Kimzey, 836 F.3d at 1266 ("[w]e decline to open the door to such artful skirting of the CDA's safe harbor provision."). [p. 24]

Ultimately this decision joins nearly all the other major Section 230 decisions over the years where courts have been able to remain focused on that bottom line and recognize that Section 230 prevents these lawsuits. In fact, as part of its decision the Wisconsin Supreme Court even called out a sister state supreme court that had not.

More importantly, [in J.S. v. Village Voice Media Holdings] the Washington Supreme Court ignored the text of the CDA, and the overwhelming majority of cases interpreting it, by inserting an intent exception into § 230(c)(1). The Washington Supreme Court opined that "[i]t is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking . . . because 'a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.'" J.S., 359 P.3d at 718 (citing Roommates.com, 521 F.3d at 1168). Underlying this statement is the implicit assumption that a website operator's subjective knowledge or intent may transform what would otherwise be a neutral tool into a "material contribution" to the unlawfulness of third-party content. As explained in Section II. C., however, this assumption has no basis in the text of § 230(c)(1). The relevant inquiry, regardless of foreseeability or intent, is "whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provided by another." Backpage.com, LLC, 817 F.3d at 19 (citing Barnes, 570 F.3d at 1101-02). [p. 27-28]

Unlike the Supreme Court in Washington, the Supreme Court in Wisconsin could see how the bigger picture required it not to read extra requirements into Section 230 that Congress had not put there. And so it has now joined most other courts that have let Section 230 do its job ensuring online speech can remain protected.

Filed Under: cda 230, intermediary liability, section 230, wisconsin
Companies: armslist


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 1 May 2019 @ 12:14pm

    Why do they not go after the person(s) who made the illegal sale rather then the host who sold the ad space?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 May 2019 @ 12:14pm

    John I am in need of tears.
    Entertain me jester.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Dix Doigts, 1 May 2019 @ 12:24pm

    3rd party liability has never been such. -- Not a 230 case!

    It may have been referenced because "online" and everyone thinks that's a separate world with magical new rules, but this is just the same old attempts at 3rd party liability -- particularly against gun sellers -- that's been, er, shot down numerous times.

    Of course, you corporatists always try to sweep on to that Section 230 provides total immunity for EVERY possible liability that might reasonably be applied to ANY corporation's "online" ops. -- But that's not so. I prove that with just 5 words: FOSTA.

    "Internet" corporations were wrongly provided with NEW statutes that over-turned the prior centuries. My opinion is that were explicitly bought and/or slipped in for the future, that is, NOW, though seemed harmless back when everyone, especially the ignorant and venal politicians, was excited by the false promises of "communication" bringing us all together in a wonderland of free and freely exchanged content.

    In actuality we have the Surveillance State / Surveillance Capitalism. The science-fiction dystopia is nearing inescapable.

    So let's not celebrate Section 230 -- which is a fraction of the "Communications Decency Act" which didn't deliver any decency -- because corporations are leveraging it to claim that they can control all outlets for my speech, even over my First Amendment Right.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 1 May 2019 @ 12:36pm

      Re: 3rd party liability has never been such. -- Not a 230 case!

      Of course, you corporatists always try to sweep on to that Section 230 provides total immunity for EVERY possible liability that might reasonably be applied to ANY corporation's "online" ops. -- But that's not so. I prove that with just 5 words: FOSTA.

      Just to be clear, everything you typed here is (as per your usual style) nonsense.

      No one says it shields from all liability. What it does shield from -- appropriately -- is liability for actions that violate the law that are performed by users rather than the platform itself. Anything the platform itself does that violates the law, it remains liable for. It is merely an attempt to make sure that liability is appropriately applied.

      As for the claim that FOSTA somehow proves this wrong -- er, it does the exact opposite. Proponents of FOSTA pointed out it was necessary because they believed (incorrectly, as shown by the Backpage takedown), that CDA 230 blocked the ability to go after Backpage for its own legal violations. In other words, the existence of FOSTA supports the position that CDA 230 pre-empted liability for user actions, and THEREFORE, Congress needed to step in and create a (hugely problematic) exemption from CDA 230.

      To use FOSTA to argue that CDA 230 was not previously as broad an immunity is literally backwards.

      So let's not celebrate Section 230 -- which is a fraction of the "Communications Decency Act"

      Which other part of the CDA do you think is important? You do realize that the only part that is left is 230, right?

      reply to this | link to this | view in chronology ]

      • identicon
        cpt kangarooski, 1 May 2019 @ 4:45pm

        Re: Re: 3rd party liability has never been such. -- Not a 230 ca

        There probably isn’t another important part left, but there probably is a fair amount of stuff that was simply never challenged. I think it was just the amendments to 47 U.S.C. 223 that were overturned. I don’t have time to check now though, so anyone who’d like to shepardize it, go nuts.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 May 2019 @ 12:52pm

      No one on Techdirt has ever said, or even implied, that Section 230 “provides total immunity for [every] possible liability”. Indeed, case law (i.e., “common law”) on 230 holds that said immunity can be revoked in certain, specific instances. One such instance is the Backpage case, where Backpage employees were found to have helped create and publish illicit advertisements and cost the company its “safe harbor” protections as a result. Without proof that Armslist employees did something similar, or that said employees knew the buyer of that gun would kill other people with it, Armslist cannot — and should not — face legal liability for that sale.

      Internet services upended our traditional understanding of content publication. Rather than going through middlemen who can edit material before publication (e.g., book publishers), everyday people can take to a platform such as Twitter and publish their thoughts and creative works without any such “filter”. This opens up a lot of avenues for speech — with all the allure and the dangers such a statement implies. To make sure platforms could not fall prey to lawsuits that tried to pin the blame of a third party’s words on the platform itself, 47 U.S.C. § 230 was instituted to give them broad immunity from liability for hosting third party speech. That immunity is neither permanent nor all-encompassing; it simply puts the blame for heinous/illicit speech and acts on the directly-responsible parties.

      230 also gives platforms immunity from liability for moderating third party speech. That protection allows a platform to delete illicit speech (e.g., child pornography) without being held liable for the speech showing up without the platform’s foreknowledge in the first place. That protection is what gives platforms the right to, as you put it, “control” outlets for your speech. You have a First Amendment right to speak your mind and say whatever you want — and platforms have a First Amendment right to deny you a place from which you can speak your mind. No law, “common” or otherwise, has ever changed a fact you consistently refuse to acknowledge: The First Amendment guarantees your freedom of speech, but it does not oblige you to the use of someone else’s platform or a captive audience for your speech.

      Armslist hosted an ad for a firearm. Someone bought that firearm and used it to kill a person. To hold Armslist accountable for that murder is to hold Twitter accountable for terrorist propaganda as if Twitter created and published it. Such a decision would upend not only our understanding of the First Amendment, but the entirety of Internet communications as they currently exist and operate. If you enjoy posting here anonymously as you so often do — likely to the detriment of your own mental health, I should add — you should be on your knees in gratitude for 47 U.S.C. § 230. Without that law, this comment section would not exist.

      reply to this | link to this | view in chronology ]

      • icon
        Cathy Gellis (profile), 1 May 2019 @ 1:05pm

        Re: immunity

        Appreciate the defense of 230, although I want to correct one thing: it's not accurate to say that 230 immunity could ever be "revoked." The issue is that there are situations -- such as the one you identify, where the platform was the party who is construed to have created the content in question -- when Section 230 immunity simply doesn't apply. That's different than saying it was "revoked." There are no circumstances when it has been, or could have ever been "revoked." What gets litigated is the question of whether it ever applied in the first place.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 May 2019 @ 2:08pm

      Re: 3rd party liability has never been such. -- Not a 230 case!

      Hey look!


      Horizontal rules!


      Amazing.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 May 2019 @ 5:48am

        Re: Re: 3rd party liability has never been such. -- Not a 230 ca

        Careful, those lines are probably protected by copyright.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 May 2019 @ 2:27pm

      Re: 3rd party liability has never been such. -- Not a 230 case!

      🤴:he dances so happily.
      Wine for everyone!

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 1 May 2019 @ 12:45pm

    Good decision with a side of flame

    Not only ruling correctly, but also slipping in a dig at another state's supreme court for them screwing another 230 case up when it was in their court? Two wins for the price of one.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 May 2019 @ 2:03pm

    Whittling away at Section 230's important protection because one plaintiff may be worthy leaves all the other worthy online speech we value vulnerable.

    Acceptable loss.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 May 2019 @ 2:06pm

      Considering your speech would become vulnerable as well, the irony of your declaration is astounding.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 1 May 2019 @ 2:11pm

        Re:

        She said a "worthy plaintiff" is not worth whittling away at Section 230, which effectively calls that plaintiff an "acceptable loss."

        Leaving up defamatory postings only sets a trap for anyone who finds and believes them, and then repeats the lies, because they can be sued, while the original publisher often cannot.

        Someone could even arrange to have themselves defamed, knowing it would wind up in Google, then go around online arguing with people who go "who is this ****?" and search their names, find the defamation, and because winning internet arguments is worth bankrupting themselves for, repeats the defamation and is sued. The plaintiff could note that they TRIED to get the postings removes, but because of section 230, they couldn't.

        "Why did Google set me up to be sued!!" The pro-230 crowd then says "YOU set yourself up to be sued because you should have known not to believe everything you read."

        Very easy to get rich doing this if a lawyer is in on it. Just accuse yourself of something horrible from a "burner" account and let nature take its course. Apply for jobs and housing, or ask people out on dates, post bad reviews about small companies, and in response they'll go looking for that "dirt" and fall right into the trap!!

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 1 May 2019 @ 2:15pm

          I knew you were a scam artist, Jhon, but I did not think even you would take your greed and your lack of ethics this far.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 1 May 2019 @ 2:25pm

            Re:

            See? Calling me a "scam artist" would be an example of such defamation.

            I never said I did this, only that others COULD do this. You ignore the scenario where a defense lawyer actually ran the scam to set people up to be sued, so it's not the Plaintiff running the scam. In fact, the Plaintiff is the one who was TARGETED by the scam.

            If someone is targeted for defamation, for whatever reason, and can't get rid of it from the search engines, they can still sue anyone who repeats it.

            Does it bother you that this shows a big flaw in Section 230? Whittling away at Section 230 just because a few people are smart enough to game it would destroy a very important online protection.

            BTW, I started posting here again due to something I had not foreseen, namely being accused of making six posts I did NOT make after I had left (even then that doesn't mean someone can't return for other reasons). The only way to refute someone who misidentified postings as mine would be to come here and note that.

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 1 May 2019 @ 2:35pm

              Calling me a "scam artist" would be an example of such defamation.

              No, it would be a matter of protected opinion. You could no more sue me for calling you “a scam artist” — especially when your true identity remains a secret from me and everyone else here, which makes defaming you all but impossible — than I could have you arrested for proposing a scheme to defraud the courts with false claims of defamation that begin with bogus statements you plan to make about yourself.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 May 2019 @ 2:48pm

              Re: Bring it on motherfucker

              “BTW, I started posting here again due to something I had not foreseen”

              And not because you sobered up after you threw a great big hissy fit and promised among other things to sue and or fight multiple people.

              The only person to blame for having a reputation like a fatally ruptured colon is the person you drunkenly stare at in the mirror bro.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 May 2019 @ 3:24pm

              Re: Re:

              This is a great little insight into Jhon bois thinking. He got drunk, threw a hissy and took his ball home, to never return. Only to sober up and immediately return. Then gets mad that people are still making fun of him. So he opens his cake socket in order to make damn sure they are making fun of the real fuckwit and not a random twat or a half coherent hamilton.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 May 2019 @ 5:04pm

              Re: Re:

              -when the riaa has to defend a case without lobbying

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 1 May 2019 @ 2:38pm

          Re: Dance monkey

          And on que he comes Jhon boy to show up the funny little song and dance he made up while we throw walnut shells at his head.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 May 2019 @ 2:06pm

    Sue the original publisher, but if you can't do that because the original publisher is in another country, or the defamation is past the statute of limitations but still residing in search engines, sue the dozens of people who finds it in the search engine and then repeat it on their own because they were arguing with you on the internet and went looking for "dirt" which they were predisposed to believe. It's their own fault for believing everything they read online. In fact, you can get very rich doing this because many people will be that dumb. A smart lawyer could turn this into a cottage industry.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 May 2019 @ 2:10pm

      Re:

      You're not very bright, are you?

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 1 May 2019 @ 2:16pm

        About as bright as the center of a black hole.

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 1 May 2019 @ 2:19pm

          Re:

          Section 230 clearly does NOT protect someone who actually mouths the defamatory words rather than just linking to them.

          The scam I outline above works like a clock.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 1 May 2019 @ 2:32pm

            If it works as you say it does, surely you can point to an instance of it working exactly as you laid out.

            Surely.

            I can wait.

            reply to this | link to this | view in chronology ]

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 1 May 2019 @ 2:37pm

              Re:

              If I did that, others would defame the people involved, thus perpetuating what you call a "scam."

              It's self-evident that Section 230 works this way: the original publisher can't be sued, but those who repeat the defamation on their own because they found it in Google cannot be sued.

              Someone said that a Plaintiff can't sue for what they said themselves, but in this situation the Plaintiff did NOT say the words. The plaintiff was just unable to have the defamation removed, which was fine with people until it was just pointed out that the plaintiff will inevitably get rich suing others who repeat the words. In fact, the plaintiff in this scenario TRIED to get the remarks down to protect those innocents, but was told they were trying to suppress a "well-earned" bad reputation rooted in that defamation.

              reply to this | link to this | view in chronology ]

              • icon
                Stephen T. Stone (profile), 1 May 2019 @ 2:42pm

                It's self-evident that Section 230 works this way: the original publisher can't be sued, but those who repeat the defamation on their own because they found it in Google cannot be sued.

                Except no, Section 230 does not work that way. The original publisher can be sued…if they can be found and if U.S. libel law applies to them. (Whether the suit is successful is another story.) People who repeat defamatory comments cannot be sued unless someone can prove the repeating of those comments was done with malicious intent. If Snopes was to reprint an allegedly defamatory comment with the intent of debunking (or confirming) it, the writer of that Snopes article has no business being sued.

                Someone said that a Plaintiff can't sue for what they said themselves, but in this situation the Plaintiff did NOT say the words. The plaintiff was just unable to have the defamation removed, which was fine with people until it was just pointed out that the plaintiff will inevitably get rich suing others who repeat the words.

                Bold of you to assume the courts would let libel law work that way, but go off, I guess.

                reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 1 May 2019 @ 2:40pm

            Re: Scammers gotta scam. jhons gotta whine

            “The scam I outline above works like a clock.”

            Is that the email mailing list scam bro?

            reply to this | link to this | view in chronology ]

          • identicon
            bob, 1 May 2019 @ 3:11pm

            Re: Re:

            Even a broken clock can be right twice a day.

            But no, I don't think your scam would even be successfully litigated in the scam artist's favor that many times.

            reply to this | link to this | view in chronology ]

          • icon
            Gary (profile), 1 May 2019 @ 3:33pm

            Re: Re:

            The scam I outline above works like a clock.

            Yes you are one of the best scam artists around! No wonder you sold so many self-help books. And it made you so rich you don't work anymore, just sit around trolling websites lying about how great you are and looking for the next scam.

            reply to this | link to this | view in chronology ]

          • identicon
            cpt kangarooski, 1 May 2019 @ 5:14pm

            Re: Re:

            Just so no one’s led astray from the idiot to whom I am replying, please be aware of Barrett v. Rosenthal,146 P.3d 510 (Cal. 2006) which held that an individual who repeats online information they learned elsewhere is not liable for it because they too fall within the protection of 47 USC 230.

            reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 1 May 2019 @ 2:26pm

          Re:

          I figured out who "Stephen T. Stone" is.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 May 2019 @ 2:18pm

        Re: Re:

        Wow that's a very sound argument.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 May 2019 @ 2:13pm

      Only if a court of law looked the other way on the legal merits of such a lawsuit and let pure emotion rule the day. No court worth a good god’s damn would let a defamation lawsuit against people who neither created nor published the allegedly defamatory content get beyond a single hearing.

      Also: Your plan sounds like the copyright trolling committed by Prenda Law and other, similarly dumbassed groups.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 1 May 2019 @ 2:18pm

        Re:

        Actually the court would if someone repeated it rather than linked to it.

        If someone links to the post calling the Plaintiff say a rapist, that would be protected, but if that same person goes around saying "This person is a rapist" then they "made the words their own" and do not get Section 230 protection. All the plaintiff has to do is start internet arguments with big-mouthed types who will search, then go around repeating what they find without linking to it, and they win.

        This is very easy to do because most people are very stupid and fall right into this trap.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 1 May 2019 @ 2:31pm

          All the plaintiff has to do is start internet arguments with big-mouthed types who will search, then go around repeating what they find without linking to it, and they win.

          And when the truth about who started the arguments reaches the court…well, your heroes at Prenda Law were taken down for bullshit just slightly less shady that your scam, Jhon.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 1 May 2019 @ 2:42pm

            Re:

            Wrong. Starting an argument or saying something people disagree with is not actionable, nor does it eliminate someone's protection from libel. In your scenario, the advice would be "once you are defamed, you lose your right to speak freely because this will cause idiots to find defamation about you and repeat it, which would allow you to sue them."

            It's not a man's fault if his ex-wife uses a burner account in Romania to call him a rapist and then others choose to repeat it. The court would say "Why did you believe everything you found in Google?"

            reply to this | link to this | view in chronology ]

            • identicon
              TFG, 1 May 2019 @ 2:43pm

              Re: Re:

              Incorrect. The court would instead find that the parroter was not committing libel by simply repeating what was found online. The only person guilty of libel would be the wife in this scenario - literally everyone else is not guilty.

              Try again.

              reply to this | link to this | view in chronology ]

              • This comment has been flagged by the community. Click here to show it
                identicon
                Anonymous Coward, 1 May 2019 @ 2:47pm

                Re: Re: Re:

                Incorrect. They could link to the defamation without comment and be immune, but adding their own words is separate from the original publication.

                They are the "original publisher" of their own words, not the words they found in Google. Huge difference.

                reply to this | link to this | view in chronology ]

                • identicon
                  TFG, 1 May 2019 @ 2:52pm

                  Re: Re: Re: Re:

                  You realize that Libel law requires they know it was false, and has this "actual malice" requirement, right? Show me a case where someone who repeated it, even in their own words, was found guilty of libel.

                  reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 1 May 2019 @ 2:52pm

                  They are the "original publisher" of their own words, not the words they found in Google.

                  If they have no idea the comment is a lie, how does their repeating the lie reach the same level of malice (and foreknowledge of the lie being a lie) that we would associate with the person who originally created the lie?

                  reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 1 May 2019 @ 2:46pm

              It's not a man's fault if his ex-wife uses a burner account in Romania to call him a rapist and then others choose to repeat it.

              It is his fault for suing the people who repeated the defamatory comments without the same malice with which his ex-wife had in her heart when she posted the defamatory comments in the first place. If she cannot be sued, going after third parties who had no hand in creating the defamatory comments makes that man a shitbag.

              You have thought a lot about this scam of yours, I bet. Who did you plan to use it on, Rachel Maddow?

              reply to this | link to this | view in chronology ]

              • This comment has been flagged by the community. Click here to show it
                identicon
                Anonymous Coward, 1 May 2019 @ 2:50pm

                Re:

                "Malice" is "reckless disregard for the truth" or knowledge of falsity. You're talking about "common-law malice" which is not protected, and which actually proves damages.

                There's a body of law where people have been sued because they "made the words their own." The Plaintiff is not to blame here if he or she can't sue the original publisher, which they often can't because the defamation was anonymous or is time-barred.

                Google is the one setting these people up to be sued, even if they are not liable for doing so, by the very law that causes others to be sued.

                There is no right to repeat a lie in perpetuity. In fact, if the original publisher didn't know it was false, but it was later proven false, those who make the words their own down the road would be to blame since they should have known better.

                reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 1 May 2019 @ 2:53pm

                  There's a body of law where people have been sued because they "made the words their own."

                  By all means, cite a few cases that prove your point.

                  I can wait.

                  reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 1 May 2019 @ 2:21pm

        Re:

        No, my "plan" is the logical outcome of what happens if Google refuses to remove defamatory content.

        A business could get rich doing this the second they get one defamatory review online and wait for others to repeat it. "This contractor rapes single-mother homeowners!!"

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 1 May 2019 @ 2:29pm

          Google has no legal obligation to remove defamatory content, even when presented with a court order. It is neither the creator or the publisher of that content. That Google removes links to defamatory content from its search engine upon receipt of a valid court order is an act of good faith and goodwill.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 1 May 2019 @ 2:39pm

            Re:

            Google has no legal obligation to remove defamatory content, even when presented with a court order. It is neither the creator or the publisher of that content. That Google removes links to defamatory content from its search engine upon receipt of a valid court order is an act of good faith and goodwill.

            Correct. And BECAUSE Google doesn't remove defamatory content, it sits there like a time bomb that is detonated every time someone finds the defamation and repeats it "in their own words." That was my point. It is definitely NOT Google's fault, but the fault of anyone dumb enough to believe lies they find online, just because they don't like the person for whom they were searching.

            I agree with you completely about Google, and in fact, Google is the reason the Plaintiff can get rich just by arguing with people online and letting nature take its course.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 May 2019 @ 2:41pm

              Re: Caper for me little man.

              Change of tune. Let’s hear about revenge-porn extortion.

              reply to this | link to this | view in chronology ]

              • This comment has been flagged by the community. Click here to show it
                identicon
                Anonymous Coward, 1 May 2019 @ 2:42pm

                Re: Re: Caper for me little man.

                A woman could make a fortune the same way by posting revenge porn on herself and then suing any man dumb enough to link to it.

                reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 1 May 2019 @ 2:50pm

                  Until, you know, the courts find out she posted it herself — at which point revenge porn law stops being relevant and fraud charges come into play.

                  reply to this | link to this | view in chronology ]

            • identicon
              TFG, 1 May 2019 @ 2:42pm

              Re: Re:

              Problem: parroting stuff you found on the internet is not defamation, nor is it libel. It fails the tests ... because the person who is parroting doesn't know that it's false.

              Such lawsuits would be without merit just based on libel law. Thus, the person bringing the suit would be the bad actor.

              reply to this | link to this | view in chronology ]

              • This comment has been flagged by the community. Click here to show it
                identicon
                Anonymous Coward, 1 May 2019 @ 2:44pm

                Re: Re: Re:

                Wrong: the "parrot" has "made the words their own" by repeating it.

                You can't repeat what you find in a "Ripoff Report" for example and still be immune. The key is whether or not someone "made the words their own" by endorsing or using their own words, as many people do.

                Section 230 was designed to protect ISPs and websites for CARRYING defamation, not everyone in the world for repeating it.

                reply to this | link to this | view in chronology ]

                • identicon
                  TFG, 1 May 2019 @ 2:45pm

                  Re: Re: Re: Re:

                  Show me a case where someone who merely repeated it was found guilty of libel.

                  reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 1 May 2019 @ 2:48pm

                  You can't repeat what you find in a "Ripoff Report" for example and still be immune.

                  If I have no idea whether a negative comment on Ripoff Report is a lie and I repeat it as if it were the absolute truth, for what reason should I be held liable for defamation?

                  reply to this | link to this | view in chronology ]

                  • This comment has been flagged by the community. Click here to show it
                    identicon
                    Anonymous Coward, 1 May 2019 @ 2:53pm

                    Re:

                    Reckless disregard for the truth, i.e., malice.

                    reply to this | link to this | view in chronology ]

                    • identicon
                      TFG, 1 May 2019 @ 2:55pm

                      Re: Re:

                      Are you going to provide cases that support your supposition, or are you going to continue to assert this misunderstanding of the law without anything to base it on?

                      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 May 2019 @ 3:22pm

      Re:

      "Sue the original publisher, but if you can't do that because the original publisher is in another country, or the defamation is past the statute of limitations but still residing in search engines"

      You can still sue when you lack standing ... you will lose but what the heck, you tried huh.

      reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 1 May 2019 @ 3:32pm

      Re:

      defamation is past the statute of limitations but still residing in search engines

      You seem to have a singular misunderstanding of how search engines work.

      Nothing "resides" on a search engine. You are defaming Google - go turn yourself in!!

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 May 2019 @ 2:45pm

    Another way to get rich off Section 230 is to go around OFFLINE and let people repeat what they find in the search engines, since Section 230 doesn't even apply offline, such as at a company water cooler.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 May 2019 @ 2:47pm

      Libel/defamation law still applies, though. You really are an idiot.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 May 2019 @ 2:52pm

        Re: They both shit on the carpet though

        I know. It’s so great. He just can’t help himself. It’s like watching a puppy bang into a wall with a bucket on its head.

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 1 May 2019 @ 2:53pm

          Re: Re: They both shit on the carpet though

          I know. It’s so great. He just can’t help himself. It’s like watching a puppy bang into a wall with a bucket on its head.

          Ad-hominem....let's see what federal judges say when this is pointed out to them.

          reply to this | link to this | view in chronology ]

          • identicon
            TFG, 1 May 2019 @ 2:54pm

            Re: Re: Re: They both shit on the carpet though

            Are you going to show us cases that support your supposition, or are you going to threaten meaningless legal action because someone called you names on the internet?

            reply to this | link to this | view in chronology ]

            • This comment has been flagged by the community. Click here to show it
              identicon
              Anonymous Coward, 1 May 2019 @ 2:58pm

              Re: Re: Re: Re: They both shit on the carpet though

              Calling someone names is not defamation. Lying about someone is defamation.

              Section 230 immunity is lost if someone "makes the words their own." It was never designed to make "I heard it on the internet" a get-out-of-bankruptcy-free card. Linking to a site is one thing, saying the words on their own quite another.

              The anger and insults in response to what I point out is very telling. Seems someone doesn't want this huge flaw in Section 230 publicized.

              reply to this | link to this | view in chronology ]

              • identicon
                TFG, 1 May 2019 @ 2:59pm

                Re: Re: Re: Re: Re: They both shit on the carpet though

                Are you going to show us cases that support your supposition, or are you going to continue to dance around the question because you have nothing to base your argument on?

                reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 2 May 2019 @ 4:18am

                Re: Re: Re: Re: Re: They both shit on the carpet though

                [Asserts facts not in evidence]

                reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 2 May 2019 @ 10:43am

                Your going to pay Johnny. Pay

                John I have terrible news then.
                I hear you on the internet. Talking...about us.
                And I believe you are lying.
                BUM BUM BUM

                reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 1 May 2019 @ 2:57pm

            Re: Re: Re: They both shit on the carpet though

            “Ad-hominem....let's see what federal judges say when this is pointed out to them.”

            Well since this is about the fifteenth time you’ve threatened to sue and or have me charged with a crime I’m not going to call my lawyer just yet. Instead I think I’ll just point out what an impotent, old, fuckwit you are.

            reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 1 May 2019 @ 2:58pm

            let's see what federal judges say when this is pointed out to them

            “Case dismissed.”

            reply to this | link to this | view in chronology ]

          • icon
            Toom1275 (profile), 1 May 2019 @ 9:39pm

            Re: Re: Re: They both shit on the carpet though

            "HAHAHAHAHAHAHAHAHAHAHAHAHAHHAHAHA"

            With possible variations on length.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 May 2019 @ 11:12am

            Re: Re: Re: They both shit on the carpet though

            They won't say anything. You just used the exact same words therefore you claimed them as yours and they are no longer the other persons words.

            reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 1 May 2019 @ 2:53pm

          Nowhere near as endearing as the puppy, though.

          reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 1 May 2019 @ 2:52pm

        Re:

        Libel/defamation law still applies, though. You really are an idiot.

        You'd be more credible calling someone an idiot if you interpreted what they say correctly.

        If someone repeats online defamation in an offline environment, they do not get Section 230 immunity. Someone defamed online could easily exploit this just by applying for jobs, talking to people, or being unpopular. Not their fault because they didn't author the original defamation, but it's the person's fault for believing and repeating a lie they found online in an offline environment.

        A newspaper or radio station could easily be sued for repeating offline something they found in Google.

        reply to this | link to this | view in chronology ]

        • identicon
          TFG, 1 May 2019 @ 2:53pm

          Re: Re:

          Show me a case where someone who repeated it, rather than originating it, was found guilty of libel or defamation.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 1 May 2019 @ 2:54pm

            Re: Re: Re:

            If I name the Plaintiff, that would invite more people to fall into the trap just to win this argument, so to protect those people from themselves, I won't (for now).

            reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 1 May 2019 @ 2:56pm

          If someone repeats online defamation in an offline environment, they do not get Section 230 immunity.

          No fucking shit.

          Now tell us how libel/defamation law would not protect them for repeating a statement they do not know is a lie and is not told with the same kind of malice as the original lie.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 1 May 2019 @ 2:59pm

            Re:

            Just did: "reckless disregard for the truth," plus offline liability for distributor defamation (republication) is not wiped out by Section 230.

            I just showed exactly how this works to anyone with an IQ over 50 who doesn't have a reason to pretend not to understand it.

            reply to this | link to this | view in chronology ]

            • identicon
              TFG, 1 May 2019 @ 3:00pm

              Re: Re:

              Are you going to show us cases that support your supposition, or are you going to incorrectly assume low intelligence of people who are using critical thinking skills to examine your baseless assertions and reject them due to a lack of evidence?

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 May 2019 @ 3:01pm

              Re: That’s not how any of this works

              “I just showed exactly how this works to anyone with an IQ over 50 who doesn't have a reason to pretend not to understand it.”

              You very clearly don’t understand how it actually works

              reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 1 May 2019 @ 3:01pm

              Then cite a single case — just one! — that proves libel/defamation law works exactly as you describe.

              I can wait.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 1 May 2019 @ 3:14pm

              Re: Re:

              How many times are you going to repeat the same lie without answering the simple question?

              reply to this | link to this | view in chronology ]

            • identicon
              Rocky, 1 May 2019 @ 3:24pm

              Re: Re:

              Just did: "reckless disregard for the truth," plus offline liability for distributor defamation (republication) is not wiped out by Section 230.

              Perhaps you don't understand the words reckless disregard of the truth. It means the one saying something is fully aware that what they are saying isn't the truth or that they should understand that it's obvious what they are saying can't be true.

              So repeating something that is libelous in it's origin doesn't fall under reckless disregard of the truth unless one of the criteria above is fulfilled. Your earlier statement of "but it's the person's fault for believing and repeating a lie they found online in an offline environment" only means the person in question is gullible but not guilty of any crime.

              On the other hand, your proposed scam of fabricating defamation do fill the criteria for reckless disregard of the truth, online as well as offline.

              reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 May 2019 @ 3:18pm

    Let's have an actual attorney post a formal legal opinion on the scenario I outlined. Let's have that attorney actually say that someone has carte blanche to repeat, on their own and without linking to the original publication, any lie they find anywhere on the internet.

    Courts have definitely refused 230 immunity to people who repeat lies rather than just linking to them, because they are the "original publisher" in that scenario. Even adding commentary to a link can destroy immunity, while repeating them at the "water cooler" is an OFFLINE broadcast that is clearly not immune.

    reply to this | link to this | view in chronology ]

  • icon
    thecoinrepublic (profile), 2 May 2019 @ 5:31am

    But The court would say "Why did you believe everything you found in Google?"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2019 @ 9:48pm

    Expected to see John Smith lose his shit. Was not disappointed.

    John, seriously, get a better hold on your shit.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.