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This page is part of the Proceedings of Wikimania 2006.

Does Liability Enhance Credibility?: A Wiki Role for Section 230 Olivera Medenica & Kaiser Wahab

In 1990, the Internet as we see it today and the broadband lifestyles we lead were merely dreams of a fantastic sci-fi future. However, ten years after Congress passed the Communications Decency Act of 1996 ('CDA') to promote Internet growth, no one can deny the Internet is part of the very bedrock of society. Although section 230 of the CDA was passed based on a sound policy of protecting this infant technology, the Internet’s development has shattered all expectations and it must be treated as a mature medium.

Merely repeating the statistically obvious - that Internet usage has surpassed our wildest dreams - does not speak to the nature of global society's transformation. In America alone, as of 2006, 84 million people have broadband Internet access in their homes, and it is estimated that the percentage of the American population using the Internet has reached 68% in 2005, an increase of 106% since 2000. While these numbers are compelling in their own right, the real transformation lies not in the number of broadband connections but in the perception and consumption of information.

Rising from digital distraction to peer-to-peer gospel, net culture journalism has supplanted traditional print media. Net sources are increasingly becoming the definitive statement on world affairs. When a blog, a MySpace profile, or Wikipedia says it is so then so it must be. The breadth of available online resources has liberated our information driven society from traditional media industry costs or notions of profit. As a result, there is an ocean of possible "reputable" sources speaking to issues relevant to our personal and professional interests. Everything from presidential elections to the local school bully receives Internet coverage. Indeed, 35% of all American Internet users have posted content to the Internet in some fashion and about 31 million people have posted content to the Internet.

Yet despite the astonishing rapidity and global reach of net publishing, section 230 of the CDA provides Internet Service Providers a near absolute defense against all forms of tort liability for defamatory speech. This is so even in instances where such service providers actually choose, publish, or refuse to remove third party defamatory statements that are known to be false. It is at once contradictory and alarming that defamation tort law continues to hold conventional and print media liable for the publication or distribution of defamatory material, but does not do so for the Internet.

And in the case of Wikipedia, its terrific and meteoric rise to become the world’s encyclopedia is actually jeopardized by this contradiction. Indeed, when it is publicly touted as more accurate that the Encyclopedia Britannica and cited in the past year and half by traditional news outlets more than 100 times (for everything ranging from simple definitions to complete personal biographies) its standing as a definitive source of information is critical. The question remains whether institutions such as Wikipedia can maintain long term credibility in the face of a virtual legal shield against defamation liability.

The CDA was brought about as a legislation addressing the tremendous scope of liability that an interactive service provider is exposed to under traditional jurisprudence. Where technology opened new avenues for imposing secondary liability principles, the CDA sought to close the gap and protect an emergent industry.

Section 230 of the Act 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 content provider.' Under the Act, an interactive computer service ('ICS') is broadly defined as including essentially any online service that allows others to post materials – this could be a website or an ISP such as Compuserve or America Online. In other words, if you fall under the broad definition of 'interactive computer service' you will not be liable for the materials posted on your service by someone else.

This language certainly had a tremendous impact on the Internet, as ICSs could no longer be considered 'publishers' for purposes of defamation. The tort of defamation is a tort that has a convoluted history in our jurisprudence. For the most part, defamation law varies from state to state, but its basic elements remain the same. It is not only the author of the allegedly defamatory material that can be held liable, defamation liability can also apply to its publisher and distributor. A distributor, such as a library and bookstore, can be held liable only upon a strong showing by Plaintiff that the distributor knew or should have known that it was distributing defamatory materials. As a publisher, a defendant retains control over the information disseminated, and therefore can be held liable only upon a showing that it was not careful in checking whether the material was defamatory. In order to prevail on a defamation claim against a publisher, a plaintiff must demonstrate:

1. that the statement was false and it hurt plaintiff;
2. that the communication of this statement was not private, it was communicated to somebody other than the plaintiff;
3. that the publisher was 'negligent' (i.e. not careful); and
4. that the statement is sufficiently harmful to bring about a lawsuit.

Defamation is not, as some would believe, a product of a litigious society bent on making quick money. It is an outgrowth of a well established and internationally recognized notion that free and democratic societies must recognize fundamental human rights to dignity, privacy, and the sanctity of reputation. Various international treaties and conventions enshrine the protection of reputation and privacy as a fundamental human right. For example, Article 12 of the Universal Declaration of Human Rights states: 'No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.'

Defamation law is also not a recent fabrication that exists as a grudgingly tolerated limitation on free speech. Rather, for any democratic society, free speech never exists in a vacuum, it exists only to the extent that it does not subsume the equally noble right to protect one’s reputation and privacy. As a result, modern defamation jurisprudence has focused on balancing the free speech interests of society with the reputation and privacy interests of the individual. In a defamation action, the plaintiff is merely asking the court to intervene where statements have been made that are injurious to the plaintiff’s reputation.

Such intervention is the cornerstone principle that serves to deter malicious, negligent, and inaccurate journalism aimed at everyday people, such as your friends, your family, and maybe you. And in a world wide web of blogs and wikis, where everyone is a writer and written about, this principle is absolutely vital.

What section 230 signifies for ICSs is simply that they are not liable for the defamatory statements of their clients or users. So you could have an interactive website, with users that pay you a fee for posting materials online, these users could post clearly false statements about someone else (e.g., someone’s mother, using her real name and address), and you would not be liable for it. The strength of this safe harbor provision was tested on numerous occasions, and the ICSs almost always walks away unscathed.

For example, in Zeran v. AOL, a court held that AOL was not liable for defamation where one of its users had posted a prank on AOL essentially accusing Plaintiff Zeran of condoning the Oklahoma City bombing. An anonymous user had posted on a bulletin board information regarding the sale of T-shirts featuring unsavory slogans regarding the bombings. The poster also provided the home number of Plaintiff Zeran and the plaintiff was soon inundated with irate phone calls regarding the posting. Plaintiff sued for defamation. The court held that AOL was protected by section 230. Zeran continues to be widely followed by the courts, and some holdings have even specifically stated that there is no difference between distributors and publishers for purposes of section 230. In other words, an ICS cannot be liable for defamation under section 230 either as a publisher or as a distributor.

Section 230 provides a full blown cover for plaintiffs injured by defamatory statements. The question remains whether this is a fair representation of the interests at issue. Should we as a society favor the advancement of the Internet to the detriment of our individual rights? If our First Amendment right of free speech is one of our fundamental rights, shouldn’t we also recognize our right to honor and privacy as an equally fundamental right? All of our jurisprudence is based on a balancing of interest, we cannot steal something because it would infringe on someone’s property rights and we cannot enter into a valid contract if we don’t give up something for the benefit of gaining something of value. Why does this principle fall short in the context of defamation and the Internet? This is due to the fact that, in 1996, the Internet was new and partly uncharted territory. Section 230 was a legislation enacted to protect a technology that promised to deliver tremendousopportunity and commercial growth. Ten years later, this legislative purpose has become stale and obsolete.

The Internet has certainly kept its promise of opening up new worlds, but an artificial safe harbor has prevented injured plaintiffs from fully seeking redress. If we are to retain the spirit of the CDA, while allowing for the protection of our fundamental rights to honor, reputation and privacy, we can move towards a more balanced approach. Accordingly, Section 230 should be amended to reflect this balancing of interests.

Perhaps one way of approaching this amendment would be to draw from our experiences with the Digital Millenium Copyright Act ('DMCA'). The DMCA is a legislation that was drafted to bring the United States in compliance with international treaty obligations. One of the DMCA’s most often cited provisions is section 512, or the Online Infringement Liability Limitation Act ('OCILLA'). OCILLA addresses issues in digital piracy by providing a safe harbor provision to Internet Service Providers ('ISPs') for copyright infringement liability if they comply with certain enumerated steps. Under the DMCA, the definition of an ISP is broad and can include any function from hosting a website to providing high speed internet access such as broadband, DSL and dial-up. Once such an ISP receives a notice of copyright infringement, it must immediately take the material down and send a counter-notice to the alleged infringer (a client or user of the ISP) that the material was taken down. The alleged infringer then has a period of about 10-14 days to file a lawsuit; if no lawsuit is filed the ISP can place the material back online. These provisions have certainly come under fire by First Amendment advocates, and there is no doubt that the notice-and-take-down provisions ('NTD') are vulnerable to abusive practices. Nevertheless, the NTD is a compromise between two interests at issue that are not dissimilar to defamation and section 230. OCILLA balances the interests of copyright holders against First Amendment principles, all within a window of approximately 14 days.

A similar approach to section 230 may be called the Online Defamation Limited Liability Act ('ODEFLLA'). ODEFLLA would bridge the gap between the need to promote the advancement of technologies such as the Internet and our need to preserve basic human rights to privacy and dignity. It should not be permissible for an ICS to refuse taking down materials that severely damage and impact our lives. If someone posts materials online about us that are clearly defamatory, and such materials put our lives and the lives our families at risk, should an ICS with the power to remove such materials be able to refuse to do so simply because we have no legal leverage? This scenario is not so far-fetched, and yet there is no mechanism to change legislation out of touch with reality. In addressing these issues, ODEFLLA could include the following:

1. a safe harbor provision similar to DMCA’s OCILLA provisions, including a notice and take-down provision for allegedly infringing or defamatory material;
2. limited liability for internet intermediaries by providing a statutory cap on damages; and
3. a public internet intermediary defense fund as insurance against unwarranted liability.

Drawing from the DMCA’s OCILLA provision, ODEFLLA would impose liability upon ICSs only upon a failure to respond to an actual written notice of defamatory materials. In other words, once an ICS receives a notice of allegedly defamatory materials, it would take it down and send a notice to its client or user that the material was taken down. The plaintiff would then have approximately 10-14 days to file a lawsuit, or face having the materials placed back online. Unlike the DMCA, however, the ICS would have no separate duty to police its site for alleged infringers and the ICS would not be deemed notified through constructive knowledge of the allegedly infringing materials. Furthermore, ODEFLLA would impose the requirement upon ISPs to inform its clients/users of the legislation’s obligation. For example, a dedicated portion of the ICS’ website could provide:

1. a sample notice letter;
2. a sample counter-notice letter;
3. up to date contact information for a designated agent;
4. the entire text of ODEFLLA; (5) a question and answer portion explaining the provisions of ODEFLLA in plain term; and (6) a portion explaining defamation and the potential liability attached to posting defamatory statements. In many ways, such information would be similar to Privacy and Terms of Use agreements that are featured on most websites and form a valid contract with the users of the website.

Another issue that could be addressed by ODEFLLA is a statutory cap on monetary and punitive damages in a defamation lawsuit. In other words, ODEFLLA could provide a statutory penalty of $15,000 per infringement, so as to prevent extensive and protracted litigation on the dollar value of the actual and punitive damages suffered by plaintiffs. Moreover, it could prevent headline grabbing jury verdicts that could encourage further litigious behavior by allegedly defamed individuals.

Finally, ODEFLLA could provide an opt-in defense fund to address defamation litigation for online materials. The fund would act as a limited insurance carrier for successful defamation awards against qualified participating ICSs. Although the fund may not be able to cover the entire award of an ICS, it may certainly cover a certain percentage of its defense. Participation in this fund would also signal ICS’ collective acknowledgment of the legitimacy of reputation and privacy rights. The concept of a fund is not new and has been used in a variety of industries and public necessities. For example, states such as Connecticut, Nevada, California, Oregon and South Dakota have Client Security Funds that require practicing attorneys to make yearly payments as a condition to maintaining their license. The funds disburse payments to qualifying clients aggrieved by the 'dishonest conduct'. In the case of ODEFLLA, qualifying participants could place a statutory premium of $10.00 per year, for example, towards the fund and the fund may issue a limited payout towards satisfying a damages award. The fund could be overseen by an agency such as the Federal Communications Commission which could administer the payouts.

Amending Section 230 to include the interests of injured plaintiffs requires a different approach and new policy interests to be infused into the legislation. But if we begin to examine the tort of defamation not as a monetary incentive for injured plaintiffs, but rather the gatekeeper to the protection of a fundamental human right, we can perhaps understand the importance of the interests at issue. As Aristotle once stated, '[e]ven when laws have been written down, they ought not always to remain unaltered.'