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May 12 2010

19:17

CDA Protects Newspapers from Liability for Libelous Comments

A desperate, weeks-long search in 2007 for missing Purdue University student Wade Steffey yielded a number of stories in the local Lafayette, Indiana, newspaper, the Journal & Courier. The newspaper also covered a mugging incident that was reported by another student, Timothy Collins, on the same night of Steffey's disappearance.

Local police, apparently suspicious of the coincidence between the two events, questioned Collins and administered a polygraph test. He was later charged with false informing, and the University disciplined Collins as a result of that charge. These developments were reported in subsequent news stories in the Journal & Courier. The online versions of the articles prompted many vitriolic statements by readers, including a number that accused Collins of being responsible for Steffey's disappearance.

Steffey's body was eventually discovered; his death apparently was the result of an accident. Even before that discovery, the false-informing charge against Collins was dismissed for lack of evidence. Collins subsequently brought suit against numerous parties, including the police, the University, one online commenter who used his real name, as well as various anonymous commenters, and the newspaper. Collins claimed that the newspaper was liable for defaming him, not only in its news coverage, but also as a result of the accusatory statements made by the online commenters with respect to those news stories.

In Collins v. Purdue University, 2010 WL 1250916 (N.D. Ind. March 24, 2010), a federal court held that under Section 230 of the federal Communications Decency Act (CDA) of 1996, the newspaper could not be held liable for the online comments posted by third parties.

Had the same accusatory third-party comments been published in the newspaper's print edition -- say in a letter to the editor or an op-ed piece -- the newspaper might have had a much harder time avoiding liability. That's because the legal rule in Section 230 of the CDA that is applicable to liability for online statements made by another party is much more favorable to a publisher than the legal rules applicable to liability for third-party statements in a print publication.

Why is Liability Different on the Internet?

The U.S. Congress took a bold step in 1996 with the enactment of Section 230 of the CDA. (See this previous MediaShift report, which also discussed Section 230.) While most of the provisions of the Act were aimed at censoring objectionable content on the Internet, Section 230 was aimed at protecting "interactive service providers" from liability for objectionable content provided by third party users of their services. Section 230 also protects users themselves from liability for content provided by other users.

gavel1.jpgThe purpose of Section 230 was, among other things, "to maintain the robust nature of Internet communication," and to maintain the Internet and interactive computer services as "a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity," according to a ruling in Zeran v. America Online [PDF] (4th Cir. 1997).

Under Section 230, an "interactive service provider" (e.g., an Internet Service Provider or a website operator, among others) may not be treated as the "publisher or distributor" of "information" provided by a third party user of its service. As the district court explained in Collins v. Purdue University, this language has been consistently interpreted to provide online publishers with broad immunity from liability for defamation and other wrongful acts on the part of users of their services.

The Expansive Interpretation of Section 230

The ruling in Collins v. Purdue University is a routine application of Section 230. Since the enactment of Section 230 in 1996, there have been hundreds of opinions interpreting the provision, and expanding its coverage beyond the kinds of defamation claims more usually associated with parties defined as "publishers" or "distributors."

For example, the protection afforded interactive service providers such as the newspaper in Collins v. Purdue is not limited to defamation claims. Courts have interpreted the language prohibiting the treatment of a provider "as a publisher or distributor" to limit the liability of providers for a wide range of other wrongful acts by users. (But note that claims of intellectual property infringement are expressly excluded from the protective scope of Section 230). Thus, in Green v. America Online [PDF] (3d Cir. 2003), an online provider was protected from liability for damage to a user's computer that was allegedly caused by another user's malicious transmission of a "punter" signal in an online chat room.

craigslist-hq-logo.jpgOnline providers have also been held immune from liability for the acts of sexual predators who contacted underage victims via their services (Doe v. MySpace [PDF] (5th Cir. 2008)) and from liability under civil rights statutes for religious harassment by users (Noah v. America Online (E.D. Va. 2003)). The online bulletin board Craigslist has been held immune under Section 230 from a local sheriff's claims that the service is liable under public nuisance laws for causing or inducing prostitution as a result of its "erotic services" listings. Dart v. CraigsList [PDF] (N.D. Ill. 2009)

The interpretation of Section 230 has been expansive not only in the range of claims against which it protects providers, but in situations in which it operates to protect service providers and users from liability for content provided by other parties. For example, the owner of a mailing list has been held immune from liability for defamatory statements contained in an e-mail message that the owner forwarded to mailing list subscribers. Batzel v. Smith [PDF] (9th Cir. 2003).

As controversial as some of Section 230 rulings have been, one of its more troubling applications may be in a case involving an attempt by the original author of defamatory content to have it removed from a provider's site.

In Global Royalties v. Xcentric Ventures (D. Ariz. 2007), the "Ripoff Report" online consumer complaint site was sued for refusing to remove allegedly defamatory postings at the request of the original user. The court held that refusing to remove a posting, even at the request of the original author, was an editorial function reserved to the site owner, and protected under Section 230.

The Role of Anonymity for Online Comments

If a newspaper can't be sued for defamatory online comments by readers, what about suing the individual who posted the comments?

Section 230 does not affect the liability of individuals for their own online statements, and such lawsuits can be and have been brought. But, unlike at least one of the posters in the Collins v. Purdue University case, the individuals responsible for defamatory posts frequently do not post under their real names.

In order to successfully sue an anonymous individual who posted an online comment on a newspaper (or any other) website, the plaintiff usually must serve a subpoena on the newspaper to obtain account registration information or an IP address that will lead to the poster's true identity. Many newspapers resist such subpoenas, however, and, as I have previously written, a plaintiff often must make a special showing to the court before an order will be issued requiring the newspaper or other provider to turn over of identifying information.

While it is possible to obtain such an order and ultimately sue the actual author of a defamatory online statement, it is a challenging endeavor for a plaintiff, who may spend a great deal in attorney fees to prosecute a lawsuit against a defendant who may ultimately turn out to be penniless or otherwise judgment-proof. By immunizing online providers such as newspapers from such lawsuits, Section 230 removes the obvious deep-pocket defendant from the line of fire.

Newspapers Reconsidering Online Comments?

It's easy to see the effect of Section 230 on almost any website that allows comments (such as newspapers): User comments often range from thoughtful, intelligent and carefully reasoned to venomous, vitriolic, and obviously defamatory, and everything in between.

The protection of Section 230 of the CDA enables newspapers to ignore the the user comments made on their sites, at least from the perspective of legal liability for defamatory or harmful content. Despite the legal protection Section 230 provides, however, some news sites utilize measures aimed at improving the nature of the discourse in their comments areas.

As The New York Times recently noted in an article on this phenomenon, the Wall Street Journal allows its subscribers to choose whether they will view only comments posted by other subscribers, and many news sites that police comments for content facilitate the reporting of offensive comments by other readers.

The article also reported that both the Gray Lady herself and the Washington Post are revising their comments policies to at least lessen the importance of anonymous comments. The Washington Post reportedly is considering a rating system that would boost the prominence of commenters using their real names.

This is not the first time that newspapers have reconsidered their online commenting policies. In 2005, the Los Angeles Times abandoned an early experiment in user participation when it closed a website that allowed readers to rewrite editorials, due to an overabundance of obscene content added to the site. In 2006, the Washington Post temporarily suspended online commenting when it determined that reader responses to a particular article violated its prohibitions against personal attacks, profanity and hate speech.

In a recent controversy over anonymous online comments, the Virginia Polytechnic Institute and State University (Virginia Tech) reportedly has threatened the student newspaper, the Collegiate Times, with financial consequences in an effort to abolish anonymous comments on the newspaper website. The University's Commission on Student Affairs cited "discontent" in the college community over "irresponsible and inappropriate" anonymous comments. But the editors have so far refused to modify the policy to allow only authored comments.

Conclusion

It was the stated goal of the U.S. Congress in enacting Section 230 of the CDA to "offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." That goal has certainly been achieved, but the diversity of discourse, cultural development and intellectual activity that is supported by Section 230 is accompanied by a significant amount of objectionable content in the form of defamation, vitriol and hate speech.

Section 230 provides newspapers and other online providers with legal protection from liability for such content provided by third parties, leaving providers to determine as a matter of individual policy and editorial judgment what measures, if any, they will take to address the appearance of such content on their sites.

Image of Craigslist headquarters via cyberaxis

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, "Doing Business on the Internet" and "Emerging Technologies and the Law." He also co-writes the New Media & Technology Law Blog.

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March 08 2010

20:13

What Are the Legal Implications of PleaseRobMe?

They know where you sleep, and now they know where you get coffee.

That was the message driven home by the recently created website PleaseRobMe.com. The site aggregates Twitter posts sent when a person uses Foursquare to check in at a location -- meaning they're basically telling the world that they're not at home at the moment.

According to the folks at PleaseRobMe, if a would-be burglar knows you're out with friends, that "leaves one place you're definitely not...home."

The site is a commentary on the downside of overusing location-based services like Foursquare and Loopt. These services allow users to "check-in" at different locations around the globe using smartphones or laptops. Once checked-in, a user can choose to publicly share where they happen to be by using services like Twitter.

"The site allows people to meet and is a way to find out what is going on in your area,"
said Dennis Crowley, CEO and co-founder of Foursquare. Recently, Crowley checked-in at an airport and was surprised to discover a friend he hadn't seen in months was just two terminals away. "That's the benefit," Crowley said.

While one of PleaseRobMe's founders insists the site is not really an attempt to aid cat burglars, it could be just one step away from walking outside the First Amendment's protection of free speech.

Is PleaseRobMe Aiding Burglars?

While the First Amendment's guarantee that "Congress shall make no law...abridging the freedom of speech" seems absolute, not every form of speech is guarded by the Constitution. Rather, the Supreme Court has held that some forms of speech are not entitled to full protection.

According to several lower courts, speech that aids and abets illegal acts are not shielded by the First Amendment. So, if a website were to aid in the commission of a crime and was sued for its part in the offense, the First Amendment would not offer the publisher any protection.

hitman.jpg

In an influential Fourth Circuit Court of Appeals case, Rice v. Paladin Enterprises, Paladin published a book titled, "Hit Man: A Technical Manual for Independent Contractors." The book provided "detailed instructions about how to...execute and cover up a murder." In 1993, a man named James Perry followed the author's instructions, killing three people. Subsequently, relatives of the deceased successfully sued Paladin for aiding Perry in the murders.

The Fourth Circuit stated that in order to charge a publisher with aiding and abetting a crime, the publisher must intend for people to use the article to commit an illegal act. In coming to its decision, the court noted that Paladin's book was "so comprehensive and detailed that it is as if the [author] were literally present with the would-be murderer" during the crime.

The founders of PleaseRobMe have consistently stated that they do not want people to use the site to rob a house. Instead, the site is a commentary on the amount of personal information people are making publicly available. In fact, a burglar would have a difficult time using PleaseRobMe to commit a crime, since the site does not provide anyone's home address unless it too has been posted to Twitter.

Section 230 Defense

Be that as it may, PleaseRobMe begs a particularly important question. What if someone designed a site that was intended, and could be used, to aid burglars using publicly available information? Could they be sued after someone's house was robbed?

While such a site may lack constitutional protection since its intended use would be to aid the commission of a crime, it could be protected by Congress. Section 230 of the Communications Decency Act gives immunity to any "interactive computer service," such as a website, against civil lawsuits (but not criminal sanctions) that arise from third party publications.

Section 230 was passed in 1996, just as the Internet was just beginning to make headway with the American public. As many courts have stated, the history behind Section 230 made it clear that Congress did not want websites to be liable for the statements of others. The legislature felt that imposing such a burden would hamper the Internet's development.

Normally, Section 230 is invoked when a website is sued for publishing a defamatory statement that was written by a guest poster or independent commenter. In these cases, "Section 230 is often considered to be a very strong protection against defamation suits," said Robert Richards, co-founder of the Pennsylvania Center for the First Amendment.

The question currently facing courts is how far to "define the bounds of Section 230 immunity," Richards said.

Although Section 230 is often applied to defamation lawsuits, it has also been employed in invasion of privacy, negligence and misappropriation claims. As a result of this expansion, it is not unthinkable that a court would extend Section 230 to protect a website against civil claims of aiding and abetting a burglary.

Of course, there is a question of whether such a website could be understood as merely facilitating third party publications. Nonetheless, in the wake of the PleaseRobMe controversy, the legal question posed here seems relevant, and is far from answered.

Do Location-Based Services Invade Privacy?

As location-based networks become more popular, the risk of sharing sensitive information increases as well. Though many lament the fact that so much personal information is available online, Foursquare's Crowley said his service isn't invasive.

foursquare.jpg

"We've been working on the project since 2001 and have checked in almost every day for the last 10 years, and the only bad thing that's happened is an ex-girlfriend will sometimes show up where I am," Crowley said.

He emphatically noted that "Foursquare is not tracking you. You have to check in and voluntarily choose to make your location publicly available."

"At the end of the day, you have to be aware of what you're doing online and the consequences of your acts," said Kurt Opsahl, senior attorney at the Electronic Frontier Foundation. "It's a matter of expectations. People want to tell their friends where they are,but, as PleaseRobMe points out, other actors may see personal information as well."

Although Foursquare users must volunteer to divulge their whereabouts with the general public, the site's editors may share some information with local businesses when offering various promotions, according to Foursquare's privacy policy.

This has caught the attention of Congress, which is set to hold a hearing titled, "The Collection and Use of Location Information for Commercial Purposes." The hearing will discuss the privacy concerns that have arisen due to location-based services.

"The key issue with these types of sites is disclosure. If people are agreeing that information can be shared in this manner, then that's a service that a company can provide," said Opsahl.

While the notion of sharing personal information with businesses may make some people uneasy, there are potential benefits. For instance, Foursquare's "mayor" promotion offers free products to the user who checks in at a location the most often.

"In Texas, there is a restaurant that will give away a free steak dinner to the person who checks in the most," Crowley said.

Rob Arcamona is a second-year law student at the George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

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