Chapter 15
Defamation, the Communications Decency Act and
Anonymous Free Speech
First Amendment
• Freedom of Speech-not absolute
• Reasonable restrictions on time, place and manner
• Prohibited in rare instances
• Speech related causes of action on the Internet
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Defamation
Breach of contract
Tort interference with business
Revealing intellectual property
Securities fraud
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Defamation
• Unprivileged, published false statement of fact
communicated to an identifiable third-party that
injures a person’s reputation
• State law, elements vary
• Publication- means also published to a third-party,
not just the plaintiff (not a problem with the
Internet)
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Injured Reputation
• Per se (obviously defamatory)
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Criminal conduct accusation
Incompetence in trade, profession or business
Loathsome disease
Unchastity in a woman
• Per quod (additional facts required)
• Intent or fault required
• Can depend on statutes or employment matters
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Newspapers-Accurate Reporting
• Negligence cause of action elements
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Duty to a certain standard
Breach of duty
Proximate cause
Actual harm-such as financial loss, pain and suffering
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Defenses To Defamation
• Truth is usually a defense
• Privilege• Absolute-witness, judge, attorney in court, legislative
body
• Qualified-giving employee reference, if without malice
• Fair comment• Opinion- some states, but not federal courts
• or parody
• Consent-such as signed waiver
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Forums for Potential Defamation
• Chat rooms, IM
• Web sites, blogs, email, news groups
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Communications Decency Act,
§230-Prelude
• Common law distinguished publisher from
distributor
• Publishers liable for defamation, not distributor
• Makes sense, newspaper editor liable instead of
delivery person
• ISP usually not liable, unless exerted editorial
control like filtering, so better to do nothing
• Result-either do nothing, or do not allow 3rd party
posts
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Communications Decency Act,
§230
• No provider or user of an interactive computer
service shall be treated as publisher or speaker of
any information provided by another information
content provider.
• Shield ISPs from liability, allow Internet to grow
• Does not preempt state law of ECPA of 1986
• Has been applied to invasion of privacy
• Defamation author still liable
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No Takedown Provision in §230
• Providers need not remove defamatory comments
after receiving notice-Zeran, OK City Case
• Barrett v Clark allowed reposting of defamatory
comments, no liability
• Will Congress address this situation?
• Free pass for libel
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No Recourse?
• Sites allow anonymous posting of dubious, libelous
comments
• Hell hath no fury like a woman scorned…
• Sites allow quick destruction of reputation
• Society needs to balance free speech with libelous
threats
• Real damage- Google searches for job seekers turn
up untruthful, libelous postings
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Limitations on §230 Immunity
• ISPs immunized when users have violated right of
publicity, trademark statutes
• Fair Housing Act-discriminatory ad posted on a
website
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Summary of CDA §230
• ICP-Internet Content Provider- providing content it
developed or created
• ICS-Internet Content Service- providing internet
service, but content from others
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Liable if creates or develops objectionable content
Promises to remove objectionable content but does not
Makes changes to 3rd party content, transforming it
Publishes content not believed sender wanted posted
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Summary of CDA §230-Immunity
• Site immune even if it does not take down
defamatory material
• Site paid to post 3rd party content (eBay)
• Site provided ‘neutral tools’ to create content, but
did not contribute materially
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No Recourse? §230 Fake Profiles
• Fake profiles result in harassment, threats
• Service provider not liable
• Service provider does not have to reveal poster’s
identity, then no recourse for victim
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Exploitation Websites
• Public shaming on the Internet, not by government,
but by sleazy businesses for profit
• Revenge porn
• Mugshots
• Public records
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Exploitation-Revenge Porn
• Put ex-lovers or former friends in a bad light
• Website has §230 immunity
• ‘Selfie’ shots have copyright protection, claims
• Lose §230 immunity if site developed content
• Invasion of privacy claims
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Exploitation-Mugshot Websites
• Considered public records
• Negative connotation-arrest, though may be found
innocent
• Usually do not look too good given the circumstances
• Publishing mugshots is legal, but profiting from
them may raise ‘right of publicity’ issues
• Regulated by some states
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Defamation in a Blog
• Blogs make it easy to publish defamation
statements to the world
• Bloggers still subject to defamation suits ($6.3M),
even if poor
• Blog posts, even if retracted, still cause damage
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First Amendment Protection
• Bloggers protected by 1st amendment, but not for
inciting imminent lawless action
• May still be subject to discipline for inappropriate
comments by employer
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Vlogs
• Creation of video logs
• Is a celebrity vlogger a ‘public figure’ for
defamation purposes?
• Was the published false communication made with
‘actual malice’-knowledge of falsity or reckless
disregard of the truth-towards the defamed
person?
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Blogola
• FTC polices bloggers who promote services that
they do not reveal compensation
• Section 5 of the FTC Act
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Defamation by Self Publishers
• Internet publishing-No editor or legal department
involved
• Media-defendant: damages banned absent
showing of falsity or reckless disregard for the truth
• Non-media defendant easier target
• IA Supreme Court found self-published author not
a media defender, liable
• FL court found attorney blogger to be mediadefendant and not liable
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Defamation by Search Results
• Google search results sometimes suggest links or
associations that may not be true, or can be seen
as inflammatory, or are based on rumors.
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Defamation vs Anonymous Free
Speech
• State courts seeking tests to determine when
anonymous free speech is no longer protected and
amounts to libel
• No agreement
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Rationales Favoring Anonymity
• Allows expression of unpopular ideas
• Removes fear of retribution, embarrassment
• Focus is on message, not messenger
• Publicize perceived wrong without being subject to
a lawsuit (SLAPP-Strategic Lawsuits Against Public
Participation)
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Arguments Against Anonymity
• Creates a lack of accountability
• Lessens speakers credibility
• Shield for cyberstalkers
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The Tradition of Anonymous Free
Speech
• Dates to Founding Fathers
• Avoid treason
• Encourage enactment of laws
• How do you encourage a marketplace of ideas but
not allow it to be abused?
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Unmasking the Speaker
Possible test
• Adequate notice
• Time to Respond
• Stating Claims with Specificity
• Substantial Showing of Proof
• Or a variation of?
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Barriers to Identifying an
Anonymous Poster
• Lack of Cooperation
• Cost
• Verification
• Delay
• Technology
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WikiLeaks
• International website
• Publishes secret, classified, private submissions
from anonymous sources
• Does it serve beneficial public purpose or is it a
source of malicious harm?
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