Zeran v. AOL and the effect of Section 230 of the Communications Decency Act upon liability for defamation on the internet.

• Author: Sheridan, David R.

1. Introduction

   Many interactive computer services,(1) such as America Online (AOL), CompuServe, and Prodigy operate bulletin boards, or forums, which allow subscribers to post messages that may be read and replied to by other subscribers. On the Internet,(2) USENET newsgroups and mailing lists, or listservs, provide bulletin boards that are accessible even to those who do not subscribe to services such as AOL.(3) For years, newspapers have provided a similar service through "Letters to the Editor."(4)

   Many newspapers now publish, in one form or another, on the Internet.(5) In addition to replicating some or all of the current print edition's text, many electronic editions offer bulletin boards or forums on topics of interest to their readers.(6)

   Traditionally, print newspapers have edited some letters to the editor and refused to publish others. Similarly, some electronic forums operated by newspapers are hosted or moderated by an editor who attempts to facilitate enlightened, or at least civilized, conversation.(7) This facilitation may take the form of editing or deleting certain messages.(8)

   Although some forums, USENET newsgroups, and listserv services offered by interactive computer services are moderated, most are not.(9) Similarly, some newspapers offer electronic forums that are unmoderated and unedited.(10) In addition, in an effort to attract and retain readers, newspapers increasingly allow readers to write articles for the news and features pages, as well as letters to the editor."

   In short, the activities and functions of electronic bulletin boards and electronic newspapers are converging with those of print newspapers.

   Legal treatment of defamatory material in electronic letters to the editor and postings on electronic bulletin boards, however, differs dramatically from that of printed letters to the editor. Zeran v. America Online, Inc.,(12) a recent case from the Eastern District of Virginia involving the application of [section] 230 of the Communications Decency Act of 1996(13) to an AOL forum, highlights the difference. Under Zeran, the publisher of a print newspaper could face liability for printing a defamatory letter to the editor, while the publisher of an electronic newspaper would be immune from liability for carrying unedited the same text, even if the publisher of the electronic newspaper acted with the requisite degree of culpability under state tort law.(14) A newspaper that published the same letter in its print and electronic version could face defamation liability for the paper version, but not the electronic version.(15)

   These differences in legal treatment are difficult to justify by any differences in the technology involved. Further, to the extent that the immunity from liability found in Zeran is mandated by the CDA, it exceeds any that is required to implement the CDA's goals. It arguably conflicts with what presumably is the primary goal of the Communications "Decency" Act -- i.e., to promote decency on interactive computer services -- and denies individuals whose reputations have been damaged any recovery against even the largest corporations whose malfeasance or nonfeasance contributed to the damage.

   This Article will discuss in a brief and simplified manner the technology involved in letters to the editor and electronic bulletin boards,(16) the identity and nature of the parties involved, the liability of the parties according to the common law of defamation,(17) the influence of that liability on the enactment of the CDA,"(18) the application of the CDA to an interactive computer service in Zeran, and the implications of the Zeran decision.(19)

   For purposes of this article, the key parties under the common law of defamation are publishers and distributors. A "publisher" is an entity, such as a book or newspaper publisher, who is responsible for the creation or editing of content in a publication.(20) A "distributor" is an entity, such as a bookseller or library, that makes publications available to the public.(21) If a defamation defendant is a publisher, the plaintiff need not prove that the defendant was aware of the content of the specific utterance that is the subject of the suit.(22) If a defamation defendant is a distributor, such proof is required.(23) Section 230 of the CDA was enacted to overrule Stratton Oakmont, Inc. v. Prodigy Services Co.,(24) which held that an interactive computer service was a publisher of a particular message posted on one of its bulletin boards because it claimed to screen out at least some objectionable content from its bulletin boards, even though there was no proof that it was aware of the content of the specific message at issue.(25) Section 230 provides that neither a provider nor a user of an interactive computer service shall be treated as a publisher or speaker of content provided by a third part .(26) In Zeran, the first reported case to consider the scope of the immunity conferred by [section] 230, the court held that [section] 230 also confers upon interactive computer services immunity from liability as distributors.(27) In other words, the court held that an interactive computer service is not liable for a defamatory posting on a bulletin board it carries, even if the service knows of the content of the specific message at issue, and, with the requisite fault, refuses to remove the message.(28)

   It can be argued that the Zeran holding is supported neither by the text of the law nor by the legislative history expressing an intent to overrule Stratton Oakmont. However, the Zeran holding is arguably consistent with Congress's intent, expressed in the CDA itself, to put control over content in the hands of users of interactive computer services and of parents of minor users.(29)

   Even after Zeran, liability of providers and users of interactive computer services for defamation remains an important, yet unresolved issue. Interactive computer services in general, and the Internet in particular, represent an unprecedented opportunity for individuals to make their views known. Unfortunately, such services also provide an unprecedented means for irresponsible individuals to cause damage by propagating false and defamatory statements around the world at the speed of light. Broad immunity from liability for defamation is consistent with, if perhaps not essential to, the Internet's ethic of free speech. However, broad immunity represents a value judgment not to be made lightly by Congress or to be inferred by a court from a statute that does not explicitly confer it and from contradictory signals in the legislative history and expressed intent of the statute. Unless and until Congress acts more clearly, courts should continue to resolve cases involving alleged distributor liability according to traditional tort principles, which provide extensive, but not absolute, protection for those who make publications available to others.

2. The Technology Involved

   A person who wants to publish a letter in the newspaper usually submits a typed or handwritten manuscript; a letter may also be submitted by e-mail.(30) Regardless of how it is transmitted, the letter generally is examined by an editor, who decides whether or not to publish it. The letter may be edited for style and content before it is published. Newspapers may reserve the right to edit letters, but give the letter writer the right to withdraw the letter if the writer does not approve of the edited version. After being accepted for publication and edited, the letter is typeset, laid out, usually on the editorial or op-ed page, and printed with the rest of the newspaper. The newspaper is then sold at a machine or newsstand, or delivered by carrier or by mail. Nothing in the technology of producing a newspaper requires that a letter to the editor in fact be read by an editor or subjected to any editorial review prior to publication. The newspaper could simply give all letters to production personnel with instructions, for example, that letters be typeset and published in full, without headlines, in the order in which they were received, on the editorial or op-ed page.

   A person who wants to publish a message on an electronic bulletin board logs onto the bulletin board on his computer. The bulletin board or forum is actually a server accessible to persons logging on.(31) The connection between the computers may be by direct telephone link, through a proprietary network, or through the Internet.(32) The user either composes the message while he is connected to the service or uploads a previously composed message. The message may be immediately posted, i.e., made available on the server to persons with access to the bulletin board, or it may be delayed briefly to prevent the bulletin board from becoming a chat room, 33 or it may be edited or refused publication.(34) Nothing in the technology prevents the operator of an electronic bulletin board from reading every message before it is posted on the board; in fact in a moderated USENET newsgroup or listserv this is what happens.(35)

3. Description of the Parties and Liability at Common Law

   A person who composes a letter to the editor and sends it to a newspaper for publication is, of course, liable as a publisher of the letter.(36) The company that publishes a printed newspaper is also a publisher of a letter to the editor, just as though the letter had been composed by the newspaper itself.(37) The newspaper therefore is liable for defamation if a letter that it publishes contains false and defamatory statements and if the newspaper has acted with the requisite fault.(31) If the plaintiff is a public official or a public figure, then the newspaper is liable only if it acted with knowledge of the letter's falsity, or reckless disregard of whether the letter was true or false.(37) If the plaintiff is a private figure and the topic is a matter of public interest, then a lesser standard of fault, for example, gross recklessness...