Limits on Limited Liability?

On the other hand . . . the Internet is filled with nasty stuff.  Juicy Campus is gone–it was “launched as a cesspool, and it died because it never evolved into anything else” (source)–but it was never more than a pimple on the Internet’s hate-spewing, vicious, inane, juvenile, lowest-common-denominator underbelly.  Comments on most every site that allows them and unmoderated discussion threads devolve with numbing rapidity into the worst of human discourse.  Two laws, the First Amendment and Section 230 of the Communications Decency Act, enable this environment by shielding the speakers of all but actionable speech (primarily defamation and obscenity) from liability and the websites hosting the speech from liability for all speech, actionable or not, as long as they are not responsible in whole or in part for creating or developing the speech.

Section 230 may be vulnerable.  Parents and school administrators concerned about cyber-bullying and persons victimized by defamatory or otherwise offensive anonymous speech that enters the queue of the Internet’s permanent playlist, among others, wring their hands and wail “can’t someone do something?”  Responding to this question invariably yields bad results. If we do “something” it is usually what is easiest, what is most popular, what produces the best feeling of short-term accomplishment.  We rarely attack the problem’s root or think clearly about whether no action is better than misplaced action.

Section 230 is neither perfect nor sacrosanct but I am wary of any attempts to limit its scope, whether they come in through the front door or the back.  The lawsuit by two former Yale Law School students against their anonymous defamers and attackers on AutoAdmit.com may, as this article from Portfolio.com states, “forc[e] internet intermediaries to bear greater responsibility for what they carry.” The lawsuit may also be “an all-expenses-paid elitist temper tantrum . . . [that fails] to differentiate between the really wicked and some of the tamer flamers.”  The linked article by David Margolick recounts the events leading up to the lawsuit and the results so far.  This suit suffers from a weakness common in  defamation suits against anonymous online posters. The posts are disgusting, shocking, and offensive, but they are opinion and not defamatory.  Even putative statements of fact (such as allegations that one of the AutoAdmit plaintiffs had herpes) can be non-actionable if the context in which they are made is “juvenile and hyperbolic.”

It is the plaintiffs’ “meager catch” that threatens website immunity:  “[t]he fact that so few prey were netted could prompt calls to modify Section 230(c), if only to give victims of internet abuse more of a chance.”

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