ISP Liability for Defamation and Copyright Violation Richard Warner

Defamation  Elements Statement of fact Injurious to reputation (or business) Of and concerning the plaintiff (or plaintiff’s business) Falsity Publication Injury (to person, to business) Fault

Defamation: publication  The statement must be published to at least one third party  The audience must understand the statement  But need not understand it as defamatory  Relevance to the web: statements made in a chat room or BBS that do not offend that particular audience may still be defamatory

Statement of Fact  Precision  Verifiability  Context favors inference of factual content  Where issues arise of what the statement means, the courts use a reasonable person standard for meaning  “Spam artist,” thief,” “spammers”

Injurious  Personal: The statement must be one that would, in the eyes of a respectable group of people, be injurious to the reputation of the plaintiff  Business: The statement must be one that would lead a group of respectable people not to do business with the plaintiff

Of and concerning plaintiff  A reasonable person would believe the statement was about the plaintiff or plaintiff’s business.  In most jurisdictions, the plaintiff must be alive; you cannot defame the dead.

Falsity  The statement must be false

Defamation: fault  Requirement depends on status of both plaintiff and defendant  Plaintiff Public official; public figure; private person  Defendant Media publisher; non-media publisher

Defamation: fault  Plaintiff is a public official or public figure Requirement: “Actual malice” = knowledge of falsity or reckless disregard of truth  Private person vs. media defendant Each state may imposes its own standard as long as it does not impose strict liability  Private person vs. non-media defendant US Supreme Court has not spoken; some states impose strict liability

Defamation: third party liability  Assume users of a web site defame someone  Is the site liable?  Old law question: Is it a publisher or simply a distributor?  Current law: provider or user of an interactive computer service?

Defamation: old law  In dealing with defamation on the web, courts used to use the traditional distinction between publishers and pure pass-through distributors (like bookstores and newsstands)  Strict liability for publishers, “knew or should have known” liability for distributors  CDA 230 changes this

Defamation: CDA 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.” 47 U. S. C.  Effect: only “knew or should have known” liability for defamation for ISPs, and at least one court said it would not find liability even under that standard

Zeran v. America Online, Inc.  After the Oklahoma bombing, an anonymous posting on an America Online bulletin board offered to sell “Oklahoma T-Shirts” bearing offensive slogans  Zeran’s home phone given as the contact  Zeran had no connection with the posting and his life became a nightmare  Under 230, no AOL liability

CDA 230 Open Questions  Distinguishes between print media and web sites. What if a newspaper prints and posts same story?  What if an ISP knowingly and intentionally republishes defamatory material?

Barrett v. Rosenthal  The court held that CDA 230 “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.”

CDA 230 and Pornography  Jane Doe v. AOL, no ISP liability for distribution of child pornography (Florida criminal law prohibits distribution of child pornography)

CDA 230 and Trademark Violation  Gucci America v. Hall and Assoc.: Earthlink continued to provide a product over its network even though it know the product violated trademark law  No CDA 230 protection: it creates no new intellectual property rights (CDA 230 (e)(2))

Defamation: Motive for CDA 230  The motive for CDA 230 was to shield ISPs from liability that would inhibit the development of the web  The cost of CDA 230 is no meaningful recovery for those harmed by defamation  ISP record-keeping is a problem here  Similar treatment now for copyright infringement

Copyright  Suppose A BBS contains material that infringes copyright  Old law used the doctrine of contributory infringement: Where a defendant has knowledge of the primary infringer's activities, it is liable if it materially contributes to the infringing conduct.

Digital Millennium Copyright Act (17 USC 512(k)(1) )  The DMC shields an ISP from liability for contributory infringement if it: accommodates copyright protection devices terminates repeat offenders  No need to monitor to catch infringement  The motive for 512 is similar to the motive for CDA responds to the fact that it is virtually impossible for a busy ISP to monitor for copyright infringement