The Web difference: a legal and normative rationale against liability for online reproduction of third-party defamatory content.

• Author: Sanchez, Matt C.

TABLE OF CONTENTS I. INTRODUCTION II. EXISTING LAW GOVERNING REPRODUCTION OF THIRD-PARTY SPEECH A. Privileges 1. Fair Report Privilege 2. Neutral Reportage Privilege 3. Wire Service Defense B. Application of the Established Privileges to Online Reproduction III. THE WEB DIFFERENCE A. Fundamental Differences Between Online and Offline Speakers 1. Burden of Ascertaining the Defamatory Nature of Speech 2. Defamation Liability's Enhanced Suppressive Effect on Online Speech B. The Unique Benefits of Online Speech and Online Reproduction IV. THE NECESSITY OF ABSOLUTE OR NEAR-ABSOLUTE IMMUNITY V. CONCLUSION I. INTRODUCTION

Under traditional defamation law, one who reproduces (1) a defamatory statement faces the same liability as the statement's originator. (2) In recent years the Internet has upended the simple concept of reproduction liability. Specifically, a single piece of legislation--section 230 of the Communications Decency Act ("CDA 230") (3)--provides near-absolute immunity for online reproduction of third-party defamatory content. (4) CDA 230 has elicited concern from courts and commentators who argue that immunizing online reproduction while punishing identical offline reproduction (5) makes little sense. (6) Fueling this concern is the fact that CDA 230's language and history include little explicit justification as to why the law should hold online reproduction to a different standard than offline reproduction. (7)

This Note explains why CDA 230's grant of near-absolute immunity is both consistent with the general principles of defamation law and desirable as a matter of policy. In brief, it argues that online reproduction is so different from offline reproduction that it requires a different standard of liability. Part II of this Note establishes that courts historically have carved out exceptions to liability for distinct forms of reproduction that otherwise would be defamatory on the ground that they have particular value. Part III argues that online reproduction is sufficiently distinct from other forms of speech such that an exception is appropriate, focusing on online reproduction's benefits to the public dialogue and its increased susceptibility to suppression. Part IV argues that absolute or near-absolute immunity is the only standard that would ensure that online reproduction's benefits are not unduly restricted by the chilling effect of litigation. Part V concludes.

2. EXISTING LAW GOVERNING REPRODUCTION OF THIRD-PARTY SPEECH

   The traditional standard of reproduction liability is that one who repeats a defamatory statement (8) is liable as if she were the original speaker or publisher. (9) The rationale behind reproduction liability is that reproductions can harm the defamed individual to the same extent as the original defamatory message. (10) Following the common law principle that defamatory messages have little speech value, the law seems to assume that reproductions of defamatory content offer little value to the public and thus finds no First Amendment conflict in their suppression. (11)

   CDA 230 draws a distinction between publishers of defamatory speech and individuals or entities that merely serve as conduits of third-party defamatory speech. (12) Typically, "publishers" of third-party defamatory speech--such as newspapers, broadcast organizations, and individual speakers--face reproduction liability. (13) The rationale behind this is that they adopt a defamatory message as their own when making the affirmative choice to repeat it. (14) In contrast, individuals or entities who serve as conduits of speech, sometimes called "distributors" and "transmitters"--such as booksellers and telephone companies--typically do not face liability. (15) This distinction is the basis of CDA 230 immunity.

   CDA 230 grants immunity to online reproducers by precluding courts from treating any reproducer as the publisher or speaker of content provided by a third party. (16) Opponents of CDA 230's protections argue that such an exemption is nonsensical given that online reproducers' actions often mirror those of traditional publishers. (17) However, online reproduction differs sufficiently from offline reproduction to require different treatment. Section A discusses three exceptions to traditional reproduction liability. These exceptions mark occasions where courts determined that particular forms of reproduced speech hold such value that allowing liability would unduly restrict free speech even where the speech otherwise would be considered defamatory. Section B argues that the rationales behind these exceptions are also applicable to online speech.

   1. Privileges

      1. Fair Report Privilege

      The fair report privilege is a common law and, in some jurisdictions, statutory privilege (18) that precludes defamation liability for speakers who give a fair and accurate report of certain types of governmental or official action. (19) This privilege immunizes speakers who reproduce the defamatory statements of legislators, parties to judicial proceedings, and other actors involved in official or government activities. (20) The fair report privilege was developed in order to ensure that information regarding official activities is made available to the public; for example, nearly all public knowledge about the workings of government is derived from the efforts of news organizations and others who reproduce and describe official statements. (21)

      In order to qualify for the fair report privilege, the reproducer must report merely the fact of the assertion. (22) The reproducer cannot state that the assertion is true or add additional assertions on its own authority and still enjoy absolute privilege. Stated differently, the reproducer may not "adopt[] the defamatory statement as its own." (23)

      2. Neutral Reportage Privilege

      The neutral reportage privilege, which can largely be traced to the common law, operates much like the fair report privilege. However, while fair report deals with statements made by public figures, neutral reportage precludes defamation liability for reproductions of certain statements made about public figures. (24) In order to qualify under the common formulation (25) of the privilege, a reproduction must be an "accurate and disinterested" repetition of speech from a "responsible organization" (26) that targets a public figure, concerns "a raging and newsworthy controversy," and constitutes a "serious charge" against the public figure. (27)

      The rationale behind the neutral reportage privilege is that it is newsworthy when reputable speakers make accusations against public speakers, regardless of the truth of the accusation. (28) To borrow a hypothetical situation, imagine that the President of the United States holds a news conference in which he accuses the Vice President of accepting bribes from a large and influential corporation. (29) After the conference, the President informs those in attendance that the accusations were false and that he made them in order to rouse public sentiment against the Vice President. Traditional defamation reproduction law would hold the attendees liable for defamation if they printed only the phrase, "The President accused the Vice President of accepting bribes," (30) regardless of the fact the attendees attributed the statement to the President. Thus, absent the neutral reportage privilege, the President's attempt to discredit the Vice President * a significant news story * would likely go unreported, because there would be no way to reproduce the accusation without assuming liability for it.

      3. Wire Service Defense

      The wire service defense, another primarily common-law privilege, shields publications from liability for defamation arising from news they reproduce from certain reputable sources. (31) The defense has primarily been applied to content that other speakers reproduce from wire services such as the Associated Press. (32) The privilege applies so long as the news is apparently authentic, meaning it is not facially inconsistent and the speaker does not have actual knowledge that it is false. (33)

      The rationale of the wire service defense is that, absent such a protection, publications would be deterred from republishing news stories except where they could afford to have their own reporters investigate the facts. (34) It would be difficult, if not impossible, for wire services to operate or for small publications to offer coverage of news occurring outside their community if publications were required to independently verify all facts included in wire service content. (35)

   2. Application of the Established Privileges to Online Reproduction

      As is apparent from the above discussion, the established privileges mark occasions where courts determined that the value in particular forms of reproduced speech exceeds the possible harm caused by reproducing possible defamatory statements. The rationales for adopting the above privileges resonate with online reproduction. Owing to its unique characteristics as a speech medium, online reproduction offers great value to society in that it allows a robust, immediate, and open public dialogue to arise around noteworthy events and statements. While online reproduction as a whole does not fit neatly into any of the three privileges, the rationales behind the privileges justify exempting online reproduction from liability.

      In developing the fair report and neutral reportage privileges, courts and legislators recognized that important controversies arise around statements and that the public dialogue benefits from these statements: the fact that a statement or accusation has been made can be as noteworthy as the accusation itself. (36) These privileges protect discussion of statements and accusations by allowing speakers to spread word without fearing liability. Online reproduction allows even greater opportunity for such discussion than does traditional reproduction because the online environment makes it easy for...