Since 1996 Section 230 Communications Decency Act (“CDA”), as interpreted by the courts, has given website hosts and creators a broad immunity for claims against them of libel that traditional publishers have not been afforded.

For example say a third-party posted something libelous or unflattering about you or your family member on a website. Now with a simple Google search of you or your family member’s name, anyone in the world can view this content regardless whether the website creator knew of its veracity or not. When struggling to get the content removed, you try to contact the website host to get the content taken down and he or she is either unresponsive, or does not want to take it down because he or she simply does not care, the host would be immune to suit under § 230 of the CDA.

Congress enacted § 230 of the CDA back in 1996 because it did not want to stifle the growth of the Internet. But this rationale has worn out its welcome because the Pandora’s Box that is the Internet has been opened and there is no going back. Because of this, we must take the good with the bad that the Internet has to offer, but we should still take a proactive stance by incentivizing website hosts to police their website actively. Courts, such as the one in Blumenthal v. Drudge, have explicitly said that if they were writing on a blank slate, and not writing on prior precedent set by the varying Circuits, they would likely be harsher on websites hosts who take full advantage of the CDA.

Congress should update the outdated statute because the Internet’s popularity is not going to subside and victims of libel have been left without recourse in many situations. Victim’s lack of recourse can arise either because the third-party that posted the content does not have financial resources to compensate the victim, or the third-party posted the content in anonymous way. One possible avenue Congress could travel is by following in the footsteps of the Digital Media Copyright Act (“DMCA”) which created safe harbors for websites. The safe harbor provision of the DMCA requires a website to have no knowledge as to its role in hosting copyrighted material and once notified, a website host must expeditiously take down the content. Moreover, it provides a poster of the content to object to the removal their content through a procedural method. This can easily be modified with regard to defamatory content and should be implemented with regard to § 230 of the CDA.

Until Congress updates the statute, relief for victims of libel can come only via a new Circuit Court or a Supreme Court reinterpretation of the statute. The courts could reinterpret the § 230 of the CDA to leave distributor liability intact. Distributor liability opens up a distributor, in this case a website, to liability when it knows or has reason to know that the defamatory statements were false.

Will Congress get its “Act” together or will victims keep on waiting for relief long overdue?

 

William Roberts

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