Tuesday, February 17, 2009

Yes, Section 230 provides 'different rules' for online publishers -- and that's a good thing

Techdirt today runs a very strange post asserting that "Section 230 Does NOT Mean That Online Publishers Have Different Rules" from traditional publishers like newspapers and television stations. In fact Techdirt calls the "different rules" characterization -- which is so obvious and widely accepted that I've never heard anyone, from a plaintiffs' libel lawyer to a First Amendment zealot, quibble with it -- not just "wrong," but "[v]ery, very wrong."

What do attorneys who litigate Section 230 cases mean when they say that the statute provides "different rules"? Simple: a newspaper that runs defamatory speech provided by others may be held liable for that speech, while a web site that runs the exact same speech won't. In other words, there is one rule for traditional media, a different rule for online media.

A 2007 case called Media Six v. Ziglar, involving a letter to the editor of a newspaper, illustrates why the "different rules" description of Section 230 is perfectly apt. A newspaper published a letter to the editor that accused a local prosecutor of wrongdoing. The prosecutor sued the newspaper for libel, and the jury returned a verdict of $75,000. Gannett's report on the case accurately describes the law:  "the verdict demonstrates how the law treats letters to the editor printed in the newspaper very differently from statements posted by outsiders on news media Web sites." (my emphasis). Gannett elaborates:
Libel law often provides protection to letters to the editor, but newspapers still can be liable for publishing their contents.
By contrast, in the online world, federal law protects news organizations from liability for statements posted by outsiders on their Web sites. Section 230 of the Communications Decency Act says that "no provider or user of an interactive computer service" is to be treated as the publisher of information provided by someone else.

While there are few decisions that address Section 230 in the context of news media Web sites, the cases interpreting the statute have made it clear that Section 230's protection extends to comments posted on Web sites. As a result, the federal statute would likely be held to protect a Web site from liability if a user posted a statement identical to the letter to the editor at issue in the Ziglar case.
Of course, saying that Section 230 provides "different rules" for traditional versus online publishers is not a criticism of the statute (and certainly not, as Techdirt describes it, an "attack"). Different circumstances often justify different rules, and there is a strong case to be made (with which I happen to agree) that Section 230's grant of immunity for online publishers of user-provided content is justified as a means to preserve free speech on the Internet. But calling those who -- accurately -- describe Section 230 as providing "different rules" as "[v]ery, very wrong" is just bizarre. The fact is that the rules are different, and justifiably so.

One last thing: Techdirt describes journalist David Margolick, who wrote an excellent article on the AutoAdmit lawsuit, as an example of a "clueless [person]." This is a nasty and wholly unjustified attack on one of the country's best legal journalists. Margolick -- a graduate of Stanford Law School -- accurately described the state of the law of online defamation, as well as the difficulties Section 230 presents for those who are truly defamed online (and, contra Techdirt, there is plenty of plainly defamatory speech at issue here, as Professor Volokh explains). Margolick deserves praise for his interesting and informative article -- not to be called names.

For an excellent summary of Section 230, and how it provides -- yes -- different rules for online and traditional publishers, see the Citizen Media Law Project's Section 230 page here.

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