Protecting the e-marketplace of ideas by protecting employers: immunity for employers under section 230 of the Communications Decency Act.

• Author: Zion, Eric M.D.

1. INTRODUCTION

   Unlike the antiquated system of posting a defamatory flier on a signpost or publishing a slanderous article in the local newspaper, in today's Internet era, a spiteful person may post defamatory information on the Internet with great ease and anonymity, reaching a vastly larger community. (1) The amorphous characteristics and constant expansion of the Internet greatly increases the potential damage to one's reputation caused by defamation while keeping the speaker relatively safe from liability. (2) The key, for electronic defamation tortfeasors, is the use of Internet Service Providers ("ISPs") who allow persons to stealthily travel on the information superhighway. (3) As a response to this problem, defamation law, which is largely common law and governed primarily by the States, (4) entered the electronic realm in an attempt to curb the potential abuses of information technology. Realizing a growing concern for cyberdefamation, courts were willing to impart traditional common law tort principles into the digital realm and hold ISPs liable as publishers. (5) This judicial intervention into the Internet directly conflicted with the continued growth and unrestricted access to the knowledge and discourse available on the Internet. (6)

   At the same time, the influx of Internet technology into the workplace sparked immense debate among legal scholars regarding its potential ramifications. Yet, these scholars focus minuscule attention on what impact such technology will have on the traditional employer concern of defamation suits. (7) While "electronic mail (`e-mail') and Internet use in the workplace have experienced tremendous growth in the last five years," (8) employers are also one of the traditional defendants in defamation actions and the target of a recent increase in defamation suits brought by former employees. (9) Many of these suits are based on unflattering reference letters to potential employers or negative comments regarding former employees to customers. (10) A growing trend in defamation lawsuits is to base such claims on internal workplace communications which defame a co-worker, including "the reasons for an employee's discharge, statements made in internal performance evaluations, statements made during corporate office meetings, in internal correspondence and memoranda, and in internal security reports." (11) With access now available from the workplace to the Internet, internal and external electronic bulletin boards, user groups, internal and external e-mail, chat rooms, electronic libraries, and intranet and extranet systems, (12) the door is wide open for the publication of defamatory statements. Employees with ready access to these fora may implicate an employer in tort liability with a simple click of the mouse. Despite this potential liability, employers continue to provide this access free of charge to their employees. (13)

   This brings us to the conflict at issue in this discussion. While we credit employers for providing employees with free access, such access comes at a price to the public because employers are one of the traditional purveyors of defamatory comments. To complicate matters, Congress stepped in to counteract judicial interference with Internet growth through defamation suits by enacting the Communications Decency Act (CDA), which is codified at [section] 230 of the United States Code. (14) In pertinent part, [section] 230 declares that "[n]o 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." (15) This new Section provides broad federal immunity for ISPs when defamatory material of a third party is published using their services, (16) and further provides immunity should the ISP exercise editorial control over the content by deleting potentially offensive material. (17) The purpose of [section] 230, according to Congress, is to deregulate the Internet and to allow ISPs to self-govern the content. (18)

   With the passage of [section] 230, Congress rendered employers immune for the same tort which employers are so closely associated, opening the gates to employer electronic defamation. At least one commentator suggests that employers should not be capable of invoking the immunity available under [section] 230 because it would allow employers to defame with impunity. (19) The theory is that subjecting employers to potential liability will encourage them to monitor and restrict the ability of employees to send defamatory e-mails and Internet postings. (20)

   Unfortunately, this argument is misguided in many respects. First, it is evident from the language and legislative history of the Act that Congress intended employers to be covered under [section] 230. (21) Indeed, holding employers liable would be directly contrary to the purposes of the CDA. (22) Moreover, [section] 230 immunity is only as broad as the language of the statute allows, and employers are only immune under [section] 230 for content published by third parties. (23) If the content is published by an employee acting within the scope of his or her employment, then the employer would be liable as the original publisher of the content under the doctrine of respondeat superior, not a third party, and thus the immunity will not apply. (24) Finally, the absence of immunity under [section] 230 places several federal interests at risk, including labor relations and employee privacy. (25) Congress took the right step in protecting the Internet as the electronic marketplace of ideas by protecting employers under [section] 230.

   Part I of this discussion will explore the relevant background information regarding the extreme importance the Internet plays in advancing the marketplace of ideas, and how the expansion of defamation law covering acts committed on the Internet restricts continued growth. In addition, the underlying theories of liability under defamation tort law and congressional reaction to the expansion of defamation law to cover the Internet will be discussed. Next, Part II will demonstrate that Congress intended employers to be immune under [section] 230 as ISPs and provide the substantial justifications for such a position; namely, aside from the limited immunity under [section] 230 because of vicarious liability, imposing liability on employers in the absence of [section] 230 is inconsistent with other federal policies and causes increased invasions of employee privacy. Finally, Part III addresses a few objections to employer immunity.

2. BACKGROUND: THE INTERNET AND DEFAMATION LAW

   The Internet serves to educate and advance Americans by providing a vast electronic library of information and discourse. At the same time, because of its structure, the Internet allows for the relatively unrestricted and anonymous proliferation of defamatory and offensive material. Due to users' anonymity, the law of defamation is capable of holding only ISPs liable and provides an inadequate deterrent to protect against the harms of defamation. Given the difficulty of government regulation of the Internet and the potential harm to its continued growth by such regulation, Congress demonstrated restraint and limited government interference with the passage of [section] 230, while providing the Internet with the resources to self-govern.

   1. In Praise of the Internet

      The success of the Internet spawned a new era in information dissemination. Although the Internet failed to eliminate the socioeconomic disparity between those who have access to information and those that do not, this gap is slowly shrinking with the ability of the lesser advantaged to gain access through public facilities or the workplace. (26) The Internet serves as a broad forum for the expression of viewpoints and advertisement of commercial goods. (27) As the Supreme Court recognized, the Internet "constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers." (28) As Justice Stevens commented:

      This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. (29) In addition, commercial benefits of Internet access exist for employers. "The benefits produced by using the Internet and e-mail in the workplace are impressive." (30) "However, with change come problems." (31) Despite the growth, the Court is also leery of government efforts to regulate this forum. "[T]he growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition ... we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it." (32) Boundaries to this marketplace exist and defamation law serves to restrict the flow of falsehoods in this new medium by expanding to cover the Internet realm.

   2. Defamation Law and the Internet Before Section 230

      Since the underlying concern in this discussion involves defamation law, a review of relevant tort theory is appropriate. Aside from the general theories of defamation liability based on publication, the doctrine of respondeat superior plays an especially important role in defamation law when discussing employer liability. In addition, a review of court decisions attempting to apply defamation law to the Internet prior to the enactment of [section] 230 will guide the discussion regarding the development of the statute.

      1. The Basic Tort of Defamation

         As with most tort law, the law of defamation is a "creature of state tort law," and as such varies from state to state. (33) "It must be confessed at the beginning that there is a great deal of the...