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Good Samaritan Reference 47 USC § 230

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Law

  • 47 U.S.C. § 230(c).
  • Common Law
    • Publisher / distributor Distinction: "At common law, “primary publishers,” such as book, newspaper, or magazine publishers, are liable for defamation on the same basis as authors. Book sellers, news vendors, or other “distributors,” however, may only be held liable if they knew or had reason to know of a publication’s defamatory content. (Zeran, supra, 129 F.3d at p. 331; Prosser & Keeton, The Law of Torts (5th ed.1984) § 113, pp. 810-811; Rest.2d Torts, § 581, subd. (1), & coms. c, d, & e, pp. 232-234; see also Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 852-854.)"" [Barrett Slip at 9]
      • "The Zeran court held that the publisher/distributor distinction makes no difference for purposes of section 230 immunity. Publication is a necessary element of all defamation claims, and includes every repetition and distribution of a defamatory statement. (Zeran, supra, 129 F.3d at p. 332, citing Prosser & Keeton, The Law of Torts, supra, § 113, pp. 799, 802, 803, and Rest.2d Torts, §§ 558, subd. (b) & 577.) Although “distributors” become liable only upon notice, they are nevertheless included in “the larger publisher category.” (Zeran, supra, 129 F.3d at p. 332.) “Zeran simply attaches too much importance to the presence of the distinct notice element in distributor liability. . . . [O]nce a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher. The computer service provider must decide whether to publish, edit, or withdraw the posting. In this respect, Zeran seeks to impose liability on AOL for assuming the role for which § 230 specifically proscribes liability—the publisher role.” (Id. at pp. 332-333.)" [Barrett Slip at 9]
  • Dot Kids Legislative History
    • In 2002, Congress enacted the Dot Kids Implementation and Efficiency Act. A House committee report notes that the purpose of this legislation was "to facilitate the creation of a new, second-level Internet domain within the United States country code domain that will be a haven for material that promotes positive experiences for children and families using the Internet." (H.R. Rep. 107-449 (2002) p. 5) The legislation includes a provision that the new registry it created, and related entities, "are deemed to be interactive computer services for purposes of section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c))." (47 U.S.C. § 941(e)(1).) The committee report explains that this provision was "intended to shield the '.kids.us' registry, registrars, and parties who contract with the registry, from liability based on self-policing efforts to intercept and take down material that is not 'suitable for minors' or is 'harmful to minors.' The Committee notes that ISPs [Internet service providers] have successfully defended many lawsuits using section 230(c). The courts have correctly interpreted section 230(c), which was aimed at protecting against liability for such claims as negligence[.] (See, e.g., Doe v. America Online, 783 So.2d 1010 (Fla. 2001)) and defamation (Ben Ezra, Weinstein, and Co. v. America Online, 206 F.3d 980 (2000); Zeran v. America Online, 129 F.3d 327 (1997)). The Committee intends these interpretations of section 230(c) to be equally applicable to those entities covered by H.R. 3833."17 (H.R. Rep. 107-449, p. 13.) [Barrett Slip at 9]

"I will give you two quick examples: A Federal court in New York, in a case involving CompuServe, one of our on-line service providers, held that CompuServe would not be liable in a defamation case because it was not the publisher or editor of the material. It just let everything come onto your computer without, in any way, trying to screen it or control it.

"But another New York court, the New York Supreme Court, held that Prodigy, CompuServe's competitor, could be held liable in a $200 million defamation case because someone had posted on one of their bulletin boards, a financial bulletin board, some remarks that apparently were untrue about an investment bank, that the investment bank would go out of business and was run by crooks.

"Prodigy said, 'No, no; just like CompuServe, we did not control or edit that information, nor could we, frankly. We have over 60,000 of these messages each day, we have over 2 million subscribers, and so you cannot proceed with this kind of a case against us.'

"The court said, 'No, no, no, no, you are different; you are different than CompuServe because you are a family-friendly network. You advertise yourself as such. You employ screening and blocking software that keeps obscenity off of your network. You have people who are hired to exercise an emergency delete function to keep that kind of material away from your subscribers. You don't permit nudity on your system. You have content guidelines. You, therefore, are going to face higher, stric[t]er liability because you tried to exercise some control over offensive material.'

"Mr. Chairman, that is backward. We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see. This technology is very quickly becoming available, and in fact every one of us will be able to tailor what we see to our own tastes. . . .

"Mr. Chairman, our amendment will do two basic things: First, it will protect computer Good Samaritans, online service providers, anyone who provides a front end to the Internet, let us say, who takes steps to screen indecency and offensive material for their customers. It will protect them from taking on liability such as occurred in the Prodigy case in New York that they should not face for helping us and for helping us solve this problem. Second, it will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet . . . ."

- 141 Cong. Rec. H8469- H8470 (daily ed. Aug. 4, 1995).

Caselaw

Papers

  • Matthew Schruers , THE HISTORY AND ECONOMICS OF ISP LIABILITY FOR THIRD PARTY CONTENT, 88 VA L Rev 205 March 2002
  • Patel, Immunizing Internet Service Providers From Third Party Internet Defamation Claims: How Far Should Courts Go? (2002) 55 Vand. L.Rev. 647
  • McManus, Rethinking Defamation Liability for Internet Service Providers (2001) 35 Suffolk U. L.Rev. 647
  • Freiwald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation (2001) 14 Harv. J.L. & Tech. 569
  • Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 Duke L.J.
    855 (2000)
  • Butler, Plotting the Return of an Ancient Tort to Cyberspace: Towards a New Federal Standard of Responsibility for Defamation for Internet Service Providers (1999-2000) 6 Mich. Telecomm. & Tech.L.Rev. 247
  • Sheridan, Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act
    Upon Liability for Defamation on the Internet (1997) 61 Alb. L.Rev. 147, 168

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