chapter 15 defamation, the communications decency act and anonymous free speech

Chapter 15Defamation, the Communications Decency Act and

Anonymous Free Speech

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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• Defamation• Breach of contract• Tort interference with business• Revealing intellectual property• Securities fraud

PgP BUSA331 Chapter15

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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)


PgP BUSA331 Chapter15 4

Injured Reputation

• Per se (obviously defamatory)• 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


Newspapers-Accurate Reporting• Negligence cause of action elements• 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



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• 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



Exploitation Websites

• Public shaming on the Internet, not by government, but by sleazy businesses for profit• Revenge porn• Mugshots• Public records


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


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


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


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


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?


Blogola

• FTC polices bloggers who promote services that they do not reveal compensation• Section 5 of the FTC Act


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 media-

defendant and not liable


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



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)


Arguments Against Anonymity• Creates a lack of accountability• Lessens speakers credibility• Shield for cyberstalkers


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?


Unmasking the Speaker

Possible test• Adequate notice• Time to Respond• Stating Claims with Specificity• Substantial Showing of Proof

• Or a variation of?


Barriers to Identifying an Anonymous Poster• Lack of Cooperation• Cost• Verification• Delay• Technology


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?

http://wikileaks.org/

chapter 15 defamation, the communications decency act and anonymous free speech

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