I. Defamation Primer
Recall fondly the last week of your torts class. Then read the Electronic Frontier Foundation's bloggers FAQ on online defamation law, which provides some basic information about the elements of a defamation claim and how the law has evolved online.
II. Intermediary Immunity and Section 230 of the Communications Decency Act (CDA)
As you may remember from our discussion of Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court struck down much of the CDA as unconstitutional. However, section 230, "Protection for private blocking and screening of offensive material," has survived and flourished.
o The statute
o Read 47 U.S.C. § 230, focusing especially on 230(c), the "Good Samaritan" clause. Consider Congress's stated policy objectives in 230(b). Are these objectives at all contradictory? Are they still relevant?
o The case law
o Read Zeran v. AOL, No. 97-1523 *pdf*, 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1999). This remains the benchmark application of section 230.
o Since Zeran, courts have continued to apply section 230 broadly. See, e.g., Blumenthal v. Drudge, No. 97-1968, 992 F. Supp. 44 (D.D.C. 1998) (finding AOL immune from liability for content Drudge supplied to AOL subscribers via a licensing agreement). (Optional, but note Judge Friedman, "The accusations are explosive.")
In 2004, a
III. Distinguishing Online Content from Offline Content
Outside of this statutory immunity for third-party content, the same defamation rules generally apply to online content as to offline content. Should they?
quickly Diane Rowland, Griping,
Bitching and Speaking Your Mind: Defamation and Free Expression on the Internet,
o Consider this statement by Delaware Supreme Court Chief Justice Steele: "Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely." Doe v. Cahill, 844 A.2d 451, 465 (Del. 2005) (holding that in order to unmask anonymous commenters, a plaintiff in a defamation action must meet a summary judgment standard). Is he right? Why does this matter? (Full text of the opinion here *pdf* (optional).)
O'Grady v. Superior Court, 139
IV. Jurisdiction and International Concerns
In some parts of the world, most notably the
o Read paragraphs 1-56 of Dow Jones & Co. v Gutnick (2002) HCA 56 (Austl.).
Earlier this month, the House of Lords relaxed the
V. Today in Defamation
Defamation suits against bloggers and message board posters are on the rise. Read Laura Parker's article in USA Today.
o In March, an English man won £ 10,000 in damages for being called a "sex offender," "nonce," and "racist blogger" on a Yahoo! discussion site. It was the country's first award for defamatory comments posted in a chat room. More in this Guardian article.
Finally, a quick case study in how lawyers and bloggers interact on the bleeding edge of online defamation disputes: Does this Gawker post libel Ron Burkle? Burkle thought so. Check out his lawyer's cease and desist letter and later call for a "sarcasm-free" apology.
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