ISP Liability for Defamation and Copyright Violation

Richard Warner

Defamation Elements

Statement of fact Injurious to reputation (or business) Of and concerning the plaintiff (or plaintiff’s business) Falsity Publication Injury (to person, to business) Fault

Defamation: publication The statement must be published to at least

one third party The audience must understand the statement But need not understand it as defamatory Relevance to the web: statements made in a

chat room or BBS that do not offend that particular audience may still be defamatory

Statement of Fact Precision Verifiability Context favors inference of factual content Where issues arise of what the statement

means, the courts use a reasonable person standard for meaning

“Spam artist,” thief,” “spammers”

Injurious Personal: The statement must be one that

would, in the eyes of a respectable group of people, be injurious to the reputation of the plaintiff

Business: The statement must be one that would lead a group of respectable people not to do business with the plaintiff

Of and concerning plaintiff A reasonable person would believe the

statement was about the plaintiff or plaintiff’s business.

In most jurisdictions, the plaintiff must be alive; you cannot defame the dead.

Falsity The statement must be false

Defamation: fault Requirement depends on status of both

plaintiff and defendant Plaintiff

Public official; public figure; private person Defendant

Media publisher; non-media publisher

Defamation: fault Plaintiff is a public official or public figure

Requirement: “Actual malice” = knowledge of falsity or reckless disregard of truth

Private person vs. media defendant Each state may imposes its own standard as

long as it does not impose strict liability Private person vs. non-media defendant

US Supreme Court has not spoken; some states impose strict liability

Defamation: third party liability Assume users of a web site defame someone Is the site liable? Old law question: Is it a publisher or simply a

distributor? Current law: provider or user of an interactive

computer service?

Defamation: old law In dealing with defamation on the web, courts

used to use the traditional distinction between publishers and pure pass-through distributors (like bookstores and newsstands)

Strict liability for publishers, “knew or should have known” liability for distributors

CDA 230 changes this

Defamation: CDA Section 230

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U. S. C.

Effect: only “knew or should have known” liability for defamation for ISPs, and at least one court said it would not find liability even under that standard

Zeran v. America Online, Inc.

After the Oklahoma bombing, an anonymous posting on an America Online bulletin board offered to sell “Oklahoma T-Shirts” bearing offensive slogans

Zeran’s home phone given as the contact Zeran had no connection with the posting and

his life became a nightmare Under 230, no AOL liability

CDA 230 Open Questions Distinguishes between print media and web

sites. What if a newspaper prints and posts same story?

What if an ISP knowingly and intentionally republishes defamatory material?

Barrett v. Rosenthal The court held that CDA 230 “cannot be

deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character.”

CDA 230 and Pornography

Jane Doe v. AOL, no ISP liability for distribution of child pornography (Florida criminal law prohibits distribution of child pornography)

CDA 230 and Trademark Violation Gucci America v. Hall and Assoc.: Earthlink

continued to provide a product over its network even though it know the product violated trademark law

No CDA 230 protection: it creates no new intellectual property rights (CDA 230 (e)(2))

Defamation: Motive for CDA 230

The motive for CDA 230 was to shield ISPs from liability that would inhibit the development of the web

The cost of CDA 230 is no meaningful recovery for those harmed by defamation

ISP record-keeping is a problem here Similar treatment now for copyright

infringement

Copyright

Suppose A BBS contains material that infringes copyright

Old law used the doctrine of contributory infringement: Where a defendant has knowledge of the primary infringer's activities, it is liable if it materially contributes to the infringing conduct.

Digital Millennium Copyright Act (17 USC 512(k)(1))

The DMC shields an ISP from liability for contributory infringement if it: accommodates copyright protection devices terminates repeat offenders

No need to monitor to catch infringement The motive for 512 is similar to the motive

for CDA 230. 512 responds to the fact that it is virtually impossible for a busy ISP to monitor for copyright infringement