Defamation and CDA Section 230

1. Defamation and CDA Section 230 Harvard Bits

2. Defamation Statement that is • False • Communicated to a 3rd party • Causes damage • Slander = oral • Libel = written Harvard Bits

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4. Publisher or Distributor? Harvard Bits

5. One publication available as part of the Journalism Forum is Rumorville USA ("Rumorville"), a daily newsletter that provides reports about broadcast journalism and journalists. Rumorville is published by Don Fitzpatrick Associates of San Francisco ("DFA"), which is headed by defendant Don Fitzpatrick. CompuServe has no employment, contractual, or other direct relationship with either DFA or Fitzpatrick; … • CompuServe has no opportunity to review Rumorville's contents before DFA uploads it into CompuServe's computer banks, from which it is immediately available …. Harvard Bits

6. In 1990, plaintiffs Cubby, Inc …developed Skuttlebut, a computer database designed to publish and distribute electronically news and gossip in the television news and radio industries. Plaintiffs intended to compete with Rumorville; …. • Plaintiffs claim that, on separate occasions in April 1990, Rumorville published false and defamatory statements relating to Skuttlebut …. • The allegedly defamatory remarks included a suggestion that individuals at Skuttlebut gained access to information first published by Rumorville "through some back door"; a statement that Blanchard was "bounced" from his previous employer, WABC; and a description of Skuttlebut as a "new start-up scam." Harvard Bits

7. Cubby v. Compuserve • CompuServe does not dispute… that the statements relating to Skuttlebut … were defamatory; rather, it argues that it acted as a distributor, and not a publisher, of the statements, and cannot be held liable for the statements because it did not know and had no reason to know of the statements. Harvard Bits

8. Cubby v. Compuserve (1991):Decision • …CompuServe, as a news distributor, may not be held liable if it neither knew nor had reason to know of the allegedly defamatory Rumorville statements … Harvard Bits

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11. At issue in this case are statements about Plaintiffs made by an unidentified bulletin board user or "poster" on PRODIGY's "Money Talk" computer bulletin board …. These statements included the following: • (a) STRATTON OAKMONTH, INC. ("STRATTON"), a securities investment banking firm, and DANIEL PORUSH, STRATTON's president, committed criminal and fraudulent acts in connection with the initial public offering of stock of Solomon-Page Ltd., • (b) the Solomon-Page offering was a "major criminal fraud" and "100% criminal fraud"; • (c) PORUSH was "seen to be proven criminal"; and, • (d) STRATTON was a "cult of brokers who either lie for a living or get fired." Harvard Bits

12. Plaintiffs base their claims that PRODIGY is a publisher in large measure on PRODIGY's stated policy, starting in 1990, that it was a family oriented computer network. In various national newspaper articles …, PRODIGY held itself out as an online service that exercised editorial control over the content of messages posted on its computer bulletin boards, thereby expressly differentiating itself from its competition and expressly likening itself to a newspaper. Harvard Bits

13. Stratton-Oakmont v. Prodigy (1995) • PRODIGY has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards. • Based on the forgoing, this Court is compelled to conclude that for the purposes of plaintiffs' claims in this action, PRODIGY is a publisher rather than a distributor. • - New York State Supreme Court Harvard Bits

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15. What Advice Would You Give to an ISP? Harvard Bits

16. July 3, 1995 Harvard Bits

17. Communications Decency Act • Policy: It is the policy of the United States to … remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material… Harvard Bits

18. Communications Decency Act Section 230 • Protection for `Good Samaritan' Blocking and Screening of Offensive Material: • 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. Harvard Bits

19. Communications Decency Act (2/ 96)“Display provision” • Whoever ... uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs …shall be fined under title 18, United States Code, or imprisoned not more than two years, or both. [Ruled unconstitutional] Harvard Bits

20. Reno v ACLU (1997) • In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. • Moreover, the "community standards" criterion as applied to the Internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message. • - US Supreme Court Harvard Bits

21. ACLU v Reno (1996) • … the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. • -- US District Judge Stewart Dalzell Harvard Bits

22. Call Ken Harvard Bits

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24. “Naughty Oklahoma T Shirts”KenZZ03 • “Visit Oklahoma—it’s a Blast” • “Rack’em, Stack’em, and Pack’em—Oklahoma 1995” Harvard Bits

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26. Communications Decency Act 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. Harvard Bits

27. Zeran v. AOL (1997) • … [the Good Sammaritan provision] precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred. Harvard Bits

28. regulation internet service providers source the cloud ? ? ? internet service providers destination Harvard Bits

29. Directive 2000/31/EC of the European Parliament (‘on electronic commerce') 1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Harvard Bits

30. Doe v. AOL Harvard Bits

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32. 1960 Sullivan v. New York Times (1964) “Actual malice” standard for libel of public officials Harvard Bits

33. regulation internet service providers source the cloud ? ? ? internet service providers destination Harvard Bits

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