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Communications Decency Act – Part I

In a situation where an online forum allows creation of profiles with commenting capabilities, a user may take the initiative to defame an individual personally or professionally.  The user may perform illegal actions using the online forum’s website, and in attempting to retrieve damages he/she has suffered, the defamed individual sues the online forum for providing a platform for defamation.  However, Congress has provided an exception towards interactive computer services through Section 230 of the Communications Decency Act (CDA).  What does Section 230 of the CDA do?  What can you do, as an individual, to recover from defamatory material?

What is Section 230 of the CDA?

It’s a sub-part of a federal statute that essentially dictates that an online forum (e.g., Facebook, Twitter, Tumblr) is not liable as a publisher or speaker of online defamatory comments made by its users.  For example, if a defamatory comment was posted on Facebook, then Facebook would not be liable for the defamation.  Essentially, this would protect a website from anything that its users would publish.  This is not necessarily just towards defamatory content, although, it could be expanded to “any information” provided by an entity or person using the interactive computer service’s platform. There are, however, exceptions to this broad liability, as we’ll discuss in future blogs.  Also, the exact nature of a “publisher” is still unclear.  in general, there is a difference between a publisher, which initially produces the comment, and a distributor, which is not covered, that repeats the comment.

What can you do to recover from defamation?

It seems that the only way to recover from defamatory content is by suing the individual who posted the online comment.  In Barnes v. Yahoo!, a young lady’s ex-boyfriend posted information about her publicly through a profile.  The boyfriend had posted her addresses, phone number, and nude pictures.  This resulted on her getting unsolicited requests for intercourse by various individuals.  Following this, Barnes requested the profiles to be removed, sending out multiple mailings and garnering the attention of news reports.  While Ms. Barnes did succeed, it was due to a theory of promissory estoppel, because Yahoo had expressly agreed to take the material down after being contacted, rather than direct liability as a publisher or speaker.

In the case where the individual is anonymous, it can become more complicated.  For example, there is the case of James Woods where he sued to unmask the owner of Abe List, and prosecute him/her for defamation.  Mr. Woods issued a subpoena towards Twitter to discover the identity of the unknown user by requesting basic subscriber information.  Twitter refused to disclose the identity of its user unless the court issued an order.  The lower court issued its order towards Twitter, however, the unknown user’s lawyers have appealed the lower court’s decision.  This was a difficult solution and not necessarily one available to all.  However, most social media websites provide a form for removing materials (e.g., flagging or reporting violations).  If the online service provider promises to remove the defamatory comments, then it should be bound to its promise.

At our law firm, we assist clients with legal issues related to online defamation and constitutional protections.  You may contact us to set up an initial consultation.