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Department of Not Getting It

In an item on Poynter Online about the likely dismissal of a libel lawsuit against a website where a commenter posted allegedly libelous material, a staffer from the San Diego Union Tribune is quoted thusly:

While protection to ferret out the truth is nice, I kind of wish the courts or Congress would revisit this law. It bothers me to run content online that is clearly defamatory but to get to say it’s OK because we can’t get sued. It’s like a legal neener-neener.”

He should take the time to understand the law. The 1996 Communications Decency Act carved out a “safe harbor” for online sites that host conversations. The law said essentially that the speakers, not the sites, were responsible for what’s said as long as the site doesn’t edit or otherwise muck with what’s being said. The idea was to provide a robust place for discourse.

The analogy people often make is to the phone company. The telco isn’t liable for the contents of conversations even when criminals use phones to plan crimes.

There’s no neener-neener going on here. If the traditional media guy wants to force websites to monitor all postings for libel before letting them go online, he’s arguing for wiping out a fundamental value of the Net.

5 Comments on “Department of Not Getting It”

  1. #1 Seth Finkelstein
    on Sep 8th, 2006 at 7:29 pm

    “He should take the time to understand the law.”


    (my emphasis, if it works)

    “This case includes the following issues: (1) Does the Communications Decency Act (47 U.S.C. section 230) confer absolute immunity on an Internet “provider” or “user” who republishes statements made by third parties, or can liability still be imposed under traditional common law principles where the provider or user knows or has reason to know of the defamatory character of a statement it republished on the Internet? (2) What is the meaning of the term “user” under the Act? (3) For purposes of the issue presented by this case, does it matter whether the “user” engaged in active or passive conduct?”

    Sigh .. why bother … 🙁

  2. #2 Dan Gillmor
    on Sep 9th, 2006 at 2:12 pm

    No one is arguing that defamatory material be allowed to stand after being identified as such. If someone posts a libelous comment here I’m not editing it by taking it down. But I’m not liable, and shouldn’t be, before the fact.

  3. #3 Seth Finkelstein
    on Sep 9th, 2006 at 8:19 pm

    Dan, this is the problem with blogging – you’re caught up (I assume unawares) in the demagoguery and crowd-pleasing, because that’s rewarded for simplistic appeal, while being accurate is often a competitive disadvantage or even punished.

    (Appeal decision now being challenged)

    “Appellants concede that section 230 bars treatment of providers or
    users of interactive computer services as primary publishers subject
    to strict liability, but maintain it does not bar treating them as
    distributors and subjecting them to knowledge-based liability.
    Appellants argue that the trial court’s interpretation of section 230
    protects Internet intermediaries who intentionally distribute
    injurious third party content, and that this is contrary to the very
    purpose of the statute.

    If the trial court’s interpretation is upheld, appellants maintain, “a
    `clever libeler’ could easily escape liability by having some other
    Internet user who is not subject to the jurisdiction of the Court, or
    who is anonymous, or who is judgment proof, publish libelous
    statements which another `Internet user’ is free to republish.” In
    appellants’ view, such an interpretation would convert an act designed
    to promote “decency ” into a shield for indecency,” which Congress
    could not have intended.

    We agree with appellants that the statute 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. (Rest. 2d Torts, § 581(1).) By construing
    section 230 as conferring an absolute immunity, the trial court erred.”

    If you wanted to take the side that the appeal court was wrong, fine, you’re in good company.

    But your summary … well, let’s just say I can’t say more. If I anger you, it doesn’t matter if I’m right, only that you’re the A-lister.

  4. #4 Dan Gillmor
    on Sep 10th, 2006 at 6:35 am

    Actually, I have read the case. There are two issues. The first is whether Roeenthal is deliberately distributing material she knows to be false. That is not proved, but at least there’s a halfway interesting argument to have about that.

    The other issue is whether an upholding of the appeals ruling would chill operators of websites, and there is absolutely no question that this is what would happen, according to just about every party who has filed a brief in this case.

  5. #5 Center for Citizen Media: Blog » Blog Archive » Major Court Decision Protects Online Speech
    on Nov 21st, 2006 at 10:23 am

    […] Journalists have trouble with this, as I noted a while back in critiquing a  strange posting on the Poynter site. The journalist didn’t understand the difference, a stance I found odd. The California Supreme Court got the distinction, unanimously. Whew. […]