Taming the Gossipmongers
Daniel Solove.
Photo by Ron Aira
Click on the Web address juicycampus.com and you’ll get sleazy, anonymous gossip posted from colleges around the country: the “sluttiest girls,” the “biggest cocaine users.”
That was too much for some students, who claimed that the site, launched in April 2007, bore false and harmful statements about them. Some student governments have asked college administrators to block the sites from campus networks.
In March, the New Jersey attorney general’s office said it was investigating whether the site violated the state’s consumer fraud act. Attorney General Anne Milgram issued subpoenas to two Web ad services that JuicyCampus used, according to published reports.
Among other defenses, lawyers for JuicyCampus have laid claim to a provision of the 1996 Communications Decency Act that absolves many Web publishers from liability for content created by third parties. Section 230(c) says in part: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider.”
SEX AND SECTION 230(C)
With gossip, rumor, discriminatory preferences and intrusions on privacy running rampant on the Internet, more and more websites are wielding section 230(c) to protect themselves from liability.
In March, a federal district court in New Hampshire found in Doe v. Friendfinder Network that section 230(c) shields two businesses that run adult-content websites from a woman’s lawsuit claiming that an unknown third party advertised her as a swinger. Friendfinder Network and Various Inc. run AdultFriendFinder.com, which bills itself as “the world’s largest sex and swinger personal community.”
The court said section 230(c) called for the dismissal of most of the woman’s claims, such as invasion of privacy. Immunity, said the court, “depends on the source of the information in the allegedly tortious statement, not on the source of the statement itself.”
Critics say courts have interpreted the section much too broadly. “Section 230(c) does not establish a good balance,” says George Washington University law professor Daniel Solove, who examines the statute in his 2007 book, The Future of Reputation: Gossip, Rumor and Privacy on the Internet.
“Section 230(c) was designed so that those who edited and screened content wouldn’t be penalized,” Solove adds, “but it has been turned into a blanket immunity that allows sites to leave up content that they know is defamatory or invasive of privacy.”
This spring, two federal appeals courts issued decisions that may signal a change in how courts will interpret the measure. Although it ruled in favor of the popular classified ad website Craigslist, the Chicago-based 7th U.S. Circuit Court of Appeals nevertheless called into doubt the reasoning of other courts that read section 230(c) as providing broad immunity.
In Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist, decided in March, the court said section 230(c) “as a whole cannot be understood as a general prohibition of civil liability for website operators and other online content hosts.”
The court said the statute doesn’t use the word immunity, and other parts of the law allow other claims against ISPs caused by third parties, such as contributory copyright infringement.
Plaintiffs had claimed Craigslist was liable under the Fair Housing Act for ads on renting and buying real estate that contain discriminatory preferences such as “no minorities” or “no children.”
The 7th Circuit “clearly disagreed with the idea and with the view of many other courts that section 230(c) provides an immunity for ISPs from liability for third-party content,” says Stephen D. Libowsky, a partner at Howrey in Chicago who represented the lawyers’ committee.
But, he says, “as the world increasingly moves to the Web, we don’t see why there should be a difference between a real estate ad published in the Chicago Tribune that violates the Fair Housing Act and identical material published online on Craigslist or ChicagoTribune.com not being a Fair Housing Act violation.”
IMMUNITY DENIED
In April the En Banc 9th U.S. Circuit Court of Appeals at San Francisco went a step further in Fair Housing Council of San Fernando Valley v. Roommates.com, ruling 8-3 against the conferral of section 230(c) immunity.
The councils of San Fernando Valley and San Diego claimed Roommates.com violated the statute by displaying a questionnaire asking for demographic information. The website enables and even encourages users to indicate discriminatory preferences, they said.
In his majority opinion, Judge Alex Kozinski wrote that section 230(c) does not provide immunity to a site that helps create discriminatory material. “Roommate[s] becomes much more than a passive transmitter of information provided by others,” he wrote. “It becomes the developer, at least in part, of that information.”
Kozinski added that Roommates.com “designed its search and e-mail systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children.”
Judge M. Margaret McKeown dissented, warning that the decision “will chill speech on the Internet” and will “ripple through the billions of Web pages already online, and the countless pages to come in the future.”
“Roommates.com represents a significant possible qualification on the immunity issue,” says First Amendment expert Robert M. O’Neil of Charlottesville, Va. “There was liability because the proprietor of the website creates a situation in which the visitor is only partly responsible for the unlawful or actionable posting, sharing responsibility with a proprietor who invited or even made inevitable some such unlawful or actionable material on the site,” he says.
“The Roommates.com opinion is a step in the right direction, though it is not clear how far it goes,” says GWU law professor Solove. “The site in that case was structured in a way that sought out information that would lead to violations of the law.”
Section 230(c) was included in the Communications Decency Act partly as a response to Stratton Oakmont Inc. v. Prodigy Services, a 1995 New York state case that held an ISP responsible for tort and other legal claims resulting from third-party postings.
SERVICE PROVIDERS GET A PASS
Beginning with the seminal 1997 case Zeran v. AOL, courts have interpreted section 230(c) broadly to give ISPs close to absolute immunity—even in situations in which the ISP failed to remove material after being alerted that it was harmful.
“Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium,” wrote Judge J. Harvie Wilkinson for the Richmond, Va.-based 4th U.S. Circuit Court of Appeals. “The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech.”
Through the years, other federal and state courts have followed Zeran, dismissing online libel suits and other legal claims, such as negligence. But while praising Congress for its attempt to promote the development of the Internet, critics say sites such as JuicyCampus may lead to legislative change.
Solove would change section 230(c) “so that it doesn’t eliminate distributor liability—if one knows or has reason to know that something is defamatory or invasive of privacy, then one shouldn’t be immune. If one directly solicits or encourages content that is defamatory or invasive of privacy, then there should be no immunity.”
However, Santa Clara University law professor Eric Goldman says it would be a mistake for Congress to cut back on statutory immunity. He argues that the marketplace will take care of websites known for unreliable and inaccurate information.
“Anything-goes websites relying on section 230(c) insulation are not an accident or an unexpected defect of the statute,” says Goldman, an expert in cyberlaw. “They are its natural and logical consequence.”
He adds: “The question is whether the harms they may facilitate are larger than the benefits of a robust immunization that stimulates and protects lots of legitimate behavior. Personally, I think the benefits of a robust immunization greatly outweigh the costs created by sites like JuicyCampus, so it would be a mistake to overreact to them.”
