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.
Filed Under: defamation, liability, section 230