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Thursday, June 25, 2009

A Good Idea Gone Awry

In my last post, I introduced Section 230 of the CDA, which immunizes online providers against suits based on the content of materials posted by another content provider.  While I argued that the underlying policy behind the section is sound, I believe that there are some fundamental flaws with the way it has been applied in certain cases.

This post will discuss those flaws, but only from an intuitive point of view.  My next post will tie my intuitions to the statute and argue for a different way to interpret the law.

The problem starts with an early case against America Online.  AOL had paid Matt Drudge for the right to post the Drudge Report on AOL.  Drudge published an allegedly defamatory statement, and the target of that statement sued Drudge (who would be on the hook as the "speaker" of the information) and AOL as a re-publisher.

In a relatively straightforward reading of the statute, the court ruled that a) AOL is an online provider, and b) Drudge was another content provider who provided the content over the internet. Thus, AOL was immune.

This ruling forms the basis for some strange conflicts.  The first is the employee/contractor conflict.  If the NY Times publishes a story written by an employee, it is liable.  If it publishes a story by a freelancer (e.g. contractor), then it is not liable.

The second conflict is the online/paper conflict.  If the Times prints the freelance article on paper, it is liable, but if it prints it online, it is not.

The third conflict is the republishing conflict.  If a user sends an email to an online provider, and the provider chooses to publish the email (even an edited version of it), the provider is immune. This immunity may hold, even if the provider goes out and finds the content on the internet (for example, quoting a portion of someone else's blog posting). With respect email, the Ninth Circuit has held that it is the provider's reasonable belief that the email was intended for publication, rather than the sender's subjective intent.

The fourth conflict is the paper/online receipt conflict.  If, instead of sending an email, the provider publishes something received in paper form, liability may attach, whereas the same content received over the internet is immune.

The fifth conflict is the editing/development conflict.  If a provider edits the content, it is still immune, but if the provider provides a "form" that guides the user to particular content, it can be liable as a co-developer of the information.

Some scholars, such as Eric Goldman, are just fine with these conflicts, and chalk it up to the important policy of encouraging internet based discourse.

I, however, think that Congress could not have intended some of these conflicts.  Most troubling to me is immunity for paid non-employee content.  Intuitively, it seems like liability for solicited content should not turn on the employment status of the person paid to provide that content.

I realize that this list of conflicts does not include "cyber-harassment" and other privacy/intimidation content immunized by 230.  I stand by my view that it would simply be too costly to require providers to review, fact-check, and determine the "privacy/harassment/intimidation" status of every piece of user content on its site.  That's not to say that providers shouldn't try - they should.  That's also not to say that a notice and takedown rule for content that is easily categorizable shouldn't be implemented. However, I fear that such policies would not be good for the internet.

As noted above, my next post will propose a way to read the statute that eliminates the conflicts identified above, even if it doesn't rid the world of sites like JuicyCampus.

Posted by Michael Risch on June 25, 2009 at 07:18 AM in Legal Theory | Permalink


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Conflicts? I don't see any conflicts! :-)

Posted by: Eric Goldman | Jun 25, 2009 10:12:17 AM

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