About the Author
Opinion Archives
E-mail Scott
Scott's Links

Interactive content providers not liable for damages

By Scott Tibbs, May 20, 2008

With the ruling by a federal judge that MySpace.com cannot be sued for user-posted content, webmasters everywhere can breathe a sigh of relief. From CNN's article on the case:

The appeals court ruled that the Communications Decency Act of 1996 bars such lawsuits against Web-based services like MySpace. A federal judge in Austin, Texas, dismissed the $30 million lawsuit on the same grounds last year.

"Parties complaining that they were harmed by a Web site's publication of user-generated content have recourse; they may sue the third-party user who generated the content, but not the interactive computer service that enabled them to publish the content online," Judge Edith Brown Clement wrote in the ruling.

This could take some the wind out of the sails of some local Leftists, who were screeching loudly a couple years ago that the Herald-Times could be held accountable for allegedly libelous messages posted about former Monroe County Councilor Scott Wells on the message board hosted by the H-T from 2001 to 2003. One (anonymous) Leftist wrote "if an editor of a message board forum edits some posted posts, but FAILS to edit other DEFAMATORY Posts THEY ARE LIABLE." (sic)

What a newspaper chooses to publish (in a news story or a political ad) in the physical edition of the paper is not the same as what is posted (without being screened by copy editors etc.) under limited supervision on the paper's web site. This is why the H-T screens letters to the editor for potentially libelous statements, often asking authors for documentation of claims make against elected officials or public figures. The H-T often fails to properly screen such claims, but that's another topic.

Three years ago, an Indiana newspaper faced a $235,000 judgment over a political advertisement the paper chose to publish. The critical distinction, however, is that a newspaper has 100% complete control over what is published in the physical edition of the paper. A newspaper does not have the same kind of control over a free-flowing message board hosted on the newspaper's web site - unless all posts have to be approved by a Moderator before they are visible. That was not the case with Hoosier Talk.

There is no end to the people you could sue if you go beyond the person who actually posts the messages. You could sue the poster's internet provider or the phone company, or both of the person posting libelous messages uses dial-up. You could sue the moderators of the forum and the company where the forum is hosted. For example, the H-T purchases storage for hoosiertimes.com - you could sue the H-T and the company that sold the bandwidth and storage. While this might be a dream come true for some attorneys, it would be a significant roadblock to discourse on internet chat rooms, forums and blogs, in addition to comments on a newspaper's web site.

This does not mean, however, that interactive content providers will never wind up in court over things posted on their forums, Web sites or blogs. The May 10, 2008 edition of the Indianapolis Star reported that someone created a fake profile on Facebook.com and "used it to contact Roncalli students with inappropriate messages" using the name of a dean at Roncalli High School. From the article:

Legal scholars say the issue at some point likely will end up before the U.S. Supreme Court. Until then, more aggrieved teachers are turning to the sort of suit filed in the Roncalli case.

Facebook, based in Palo Alto, Calif., removed the fraudulent profile from its site after Roncalli officials reported it last month. Puntarelli's suit against the still-unidentified troublemaker -- alleging harassment and identity deception -- was filed Thursday because Facebook's privacy policy requires a court order or subpoena before it will release identifying information.

If an interactive content provider has information on the identity of someone posting defamatory statements, they could get a subpoena to provide that information. While the best some sites may be able to offer is an IP address, that is not the case everywhere. On the Herald-Times comment sections opened last year, users need a paid subscription in order to post messages. Since HeraldTimesOnline.com has banned users from time to time for violating the site's Terms Of Service, they are presumably able to track each poster to a credit card number and then a real name. This provides an extra layer of accountability, eliminating any true anonymity on HTO.

Over a decade after the launch of the world wide web, the internet is still experiencing growing pains. More cases will wind their way through the courts and more case law will be established, with the boundaries of free speech and the responsibility of interactive content providers becoming more clear. Unfortunately, we will also be subjected to some mind-numbingly stupid attempts at legislating speech on the Internet, stupidity which merits only ridicule. The key in dealing with what is still a very new form of communication will be rationally exploring what the boundaries (and the law) should be without hysterically overreacting to a legitimate problem.