An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act

David S. Ardia has written an excellent and comprehensive law review article about the all-important Section 230 of the Communications Decency Act.  The article is entitled “Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act.”  It is a must read for all lawyers who deal with this statute.  Here’s the abstract:

In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law’s distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.

This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute’s enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.

The Article closes by discussing the study’s findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary’s defense under section 230.

Online Publisher Not Subject to Injunction Against Original Author of Defamatory Posts

Digital Media Lawyer Blog:  “Communications Decency Act update: Plaintiffs seeking to get defamatory posts removed from an online website have often been stymied by the Communications Decency Act which protects the web host from suit for publishing third party posts. However, for some time, plaintiffs have been getting around this by seeking an injunction against the original author of the post and then asking the court to enforce this injunction against the website operator under Federal Rule of Civil Procedure 65. For more on this strategy, see Eric Goldman’s blog post of November 10, 2009.

However in a December 21, 2009 ruling a federal judge in the Eastern District of Illinois ruled that this strategy violates federal law.  See Blockowicz v. Williams . . . The plaintiffs in this case brought a defamation against the defendants, Joseph Williams and Michelle Ramey, for statements published on various websites, including the Ripoff Report (www.ripoffreport.com).  The defendants apparently never answered the complaint and the court entered a default judgment against them, requiring them to remove their defamatory postings from the websites.  However, the plaintiffs were never able to contact the defendants, and the posts remained on-line.”

See “How Section 230 is like arson laws when it comes to enjoining website operators.”

Ripoff Report Wins Defamation Lawsuit Arising from Online Criticism

Arizona based Xcentric Ventures, LLC, owner of the www.ripoffreport.com won a lawsuit filed by In Intellect Art Multimedia, Inc.,  against  Matthew Milewski and Xcentric Ventures, LLC.  The plaintiff sued for defamation after Milewski filed a report on Xcentric’s website critical of the school.

On or about July 19, 2008, a report was posted on ripoffreport.com regarding SFA. In that positing, the author, “Lilly”, accused plaintiff of being a “bait & switch company,” making “false promises,” and being run “by two incompetent (sic) people.”

The court holds that the cause of action for defamation against Milewski must be dismissed because the challenged speech is merely an alleged statement of Milewski’s personal opinion about the quality of services provided by plaintiff.

. . . when viewed in its full context, reveals that Milewski is a disgruntled consumer and that his statements reflect his personal opinion based upon his personal dealing with plaintiff. They are subjective expressions of consumer dissatisfaction with plaintiff and the statements are not actionable because they are Milewski’s personal opinion. Since the statements are protected opinion, the first cause of action is dismissed. . . .

Xcentric is protected by the Communications Decency Act, which provides 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.” 47 USCA § 230 (c) (1). Accordingly, the third cause of action is hereby severed and dismissed.

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