Today's example comes from a Miami blog called Coconut Grove Grapevine. On Jan. 28, the Grapevine published a post about a Miami City Commission hearing on bar closing times. Someone subsequently submitted a comment, purportedly from Commission Chairman Marc Sarnoff, expressing "support" for "drinking and driving after 3am even if it claims the lives of others," and signed "XOXO Marc Sarnoff." Unsurprisngly, the comment wasn't actually from Sarnoff, and his attorney fired off a letter to Tom Falco, Grapevine's editor, demanding removal of the comment.
I don't fault Sarnoff for being annoyed at the comment. (Though I do question whether it was truly defamatory; would a reasonable person really believe that Sarnoff expressed "support" for drunk driving in a blog's comment section?) But I do fault his attorney (and Sarnoff, who is also a lawyer), for the letter, which makes completely unfounded legal threats and ignores the relevant law.
The letter states:
Please be advised that you have a duty as the owner, editor, and publisher of the website, to police what is being posted on your website. See § 836.03, Fla. Stat.; see also Becker v. Hooshmand, 841 So. 2d 561 (Fla. 4th DCA 2003). As such, since the post is the direct and proximate cause of injury to Commissioner Sarnoff, it is actionable against you and your web site.That's just flat wrong. Under Section 230, an "owner, editor, and publisher" of a web site emphatically does not "have a duty...to police what is being posted on [his] website" by third parties. As Section 230(c)(1) says, "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." If defamatory material is posted to a site by a third party, that third party may well be liable, but Section 230 provides virtually airtight immunity for the site itself. And the letter's citations to state law are beside the point; Section 230 preempts state law. See id. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."). (The Becker case is inapposite; it merely held that a Florida court had personal jurisdiction over a Pennsylvania defendant who allegedly defamed a Florida resident. It did not even discuss Section 230.) Simply put, unless Falco himself wrote the offending comment (and there is no indication that he did), then he is not legally responsible for that fact that it appears on his blog.
Next come the threats:
On behalf of Commissioner Sarnoff, I demand that you remove and formally retract the defamatory and libelous statements immediately. If you fail to remove and retract said statements, Commissioner Sarnoff will be left with no alternative other than to pursue all possible legal recourse against you and your website. This includes, but is not limited to, financial compensation for damages you have caused to Commissioner Sarnoff's reputation via the defamatory statements. In addition, Commissioner Sarnoff will seek attorneys' fees and costs for pursuing said action.These threats are empty. Under Section 230 there is no "possible legal recourse against [Falco] and [his] website." He is simply not liable for defamatory statements "provided by another information content provider," even after notification of the statements' allegedly defamatory nature. See, e.g., Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997).
But Falco says that he "do[es] moderate comments and do[es] not allow any malicious ones to pass," though "this one got by." Does his screening of comments remove his Section 230 immunity? No. As the Citizen Media Law Project's Section 230 page says, "Screening objectionable content prior to publication  is the quintessential activity that Section 230 was meant to immunize, and courts have consistently held that screening content prior to publication does not make an interactive computer service liable for defamatory material it does publish on its site."
Lastly, though Falco appears to have been fully protected by Section 230, and could have left up the comment without risking liability, I think he did the right thing by removing it. Just because web site operators don't incur liability by leaving up defamatory material posted by others doesn't mean they should. The best way for Section 230 to retain its vitality is for operators of web sites to act responsibly, as Falco appears to have done here.