Thursday, November 21, 2013

Major case in Sixth Circuit tests Section 230 when ("gossp site") service provider moderates content or seems to "entice" defamation

There is a major case involving Section 230 of the 1996 Telecommunications Act (the misnamed “Communications Decency Act” of 1996) going before the Sixth Circuit in Cincinnati, Ohio.  It involves a lawsuit against “” for defamatory posts about a supposed cheerleader for the Cincinnati Bengals.  The plaintiff, Sarah Jones, prevailed in a federal district court on the grounds that the website apparently “approved” posts and apparently wrote some addition brief content (“one-liners”) in the moderation process.   Several media outlets wrote about this case yesterday, Nov. 20. Findlaw has an account, by William Peacock, here. The story maintains that other circuits have interpreted CDA230 very narrowly – which works for the defense, because moderation of content is not supposed to report in liability. I moderate blog post comments, and in fact Blogger pre-moderates the comments for spam before I see them.
Electronic Frontier Foundation has a story here EFF suggests that the plaintiff also argues that Nik Richie, the site operator, encourages defamation with the ("gossip site") website name and promotion.  I’m not aware of whether that point has been settled in CDA230-related cases.  But if the Sixth Circuit rules for the plaintiff, there will be conflicting rulings and the case is likely to wind up before the Supreme Court. EFF and several other entities have joined together to file an amicus brief, link available there. 
There has also been a proposal by state attorneys general to weaken Section 230 with respect to state criminal laws (Aug. 9).

Some ISP’s or service providers have indemnification clauses in their TOS policies requiring users to pay the cost of defending the providers should they be sued for defamation. A strong Section 230 makes actual use of these clauses very rare in practice.  If section 230 were weakened, frivolous or SLAPP suits against service providers as well as against speakers could become more common and result in tremendous expense to speakers, through bullying.
Book publishers do not have a “Section 230” protecting them or authors, so they nearly always have these author warranty and indemnification clauses in their contracts.  But book publishers (even platforms for supported self-publishing) normally review content for potential problems anyway, and the practical risk to authors is reduced by the fact that print (or even POD) publishing is slower and involves more third-party diligence than spontaneous online speech.  Book contents, however, are rapidly becoming more accessible to search engines, so defamation could become a bigger problem in the future than it has been in the past.  The search engine companies might be protected by CDA230 when the book publishers (who supplied the online content) are not, and similar concepts would seem to apply to the DMCA safe harbor copyright takedown immunity mechanism (next post).  

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