Bloggers and listserv hosts can escape liability for libelous third-party comments

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Mar 05, 2009 Bloggers and listserv hosts can escape liability for libelous third-party comments

Bill of Rights. (From the public domain.)

The libel laws belong in the trash heap. The First Amendment is damaged far more by having libel laws than any benefit of such laws.

Fortunately, the federal Communications Decency Act ("CDA") provides broad protection against libel liability to bloggers and listserv operators for comments and emails posted by third parties to their webpages. Following are the authorities supporting such immunity and hopefully giving bloggers, listserv operators, and online bulletin board operators all the more courage to allow robust third-party discussion on their webpages.

– Operators of email listservs, online bulletin boards and blogs are not legally liable for what automatically gets posted to to their webpages by third parties. 47 USC §  230(c) (Communications Decency Act); Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (dismissing libel suit against AOL for allegedly libelous statements posted by a third party on an online bulletin board operated by AOL). See also Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), cert. denied,  541 U.S. 1085 (2004) (permitting dismissal of a lawsuit against an email listerv operator should the facts reveal that the operator merely acted as a passthrough to the listserv for the third party who emailed an allegedly libelous comment to the listserv operator).

– The Third Circuit provides similar protections: Dimeo v. Max, 433 F. Supp. 2d 523, (E.D. Pa. 2006), aff’d.248 Fed. Appx. 280, 2007 U.S. App. LEXIS 22467 (3d Cir. 2007, unpublished) (dismissing lawsuit against an online bulletin board operator for third party postings of allegedly libelous comments).

– The Seventh Circuit confirms protection beyond libel suits to listserv operators, online bulletin board operators, and bloggers for third-party postings that are legally actionable against the commenters. Chi. Lawyers’ Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, (7th Cir. 2008). "What [47 USC] § 230(c)(1) says is that an online information system must not ‘be treated as the publisher or speaker of any information provided by’ someone else. Yet only in a capacity as publisher could craigslist be liable under [42 USC] § 3604. It is not the author of the ads and could not be treated as the ‘speaker"’ of the posters’ words, given § 230(c)(1). The Lawyers’ Committee responds that ‘nothing in §  230’s text or history suggests that Congress meant to immunize an ISP from liability under the Fair Housing Act. In fact, Congress did not even remotely contemplate discriminatory housing advertisements when it passed § 230.’ That’s true enough, but the reason a legislature writes a general statute is to avoid any need to traipse through the United States Code and consider all potential sources of liability, one at a time. The question is not whether Congress gave any thought to the Fair Housing Act, but whether it excluded §  3604(c) from the reach of §  230(c)(1).  Cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 126-27, 95 S. Ct. 335, 42 L. Ed. 2d 320 (1974) (Congress need not think about a subject for a law to affect it; effect of general rules continues unless limited by superseding enactments)." Chi. Lawyers’ Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d at 671.

– After outlining today’s blog entry, I came upon the following law review tome on today’s blog topic by Anthony Ciolli (who blogs at First Movers), himself a recent later-dismissed defendant in a lawsuit for alleged libel and related counts arising from messages posted to an online bulletin board that his company maintained: Anthony Ciolli, "Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas," 63 U. Miami L. Rev. 137 (Jan. 14, 2008). The article is too long to have read yet, but expands upon the topic in more detail than today’s brief blog entry. One of Ciolli’s particularly good points is that bloggers and listserv operators of limited financial means might cave into frivolous lawsuits over third party postings, due to the absence of statutory provisions enabling such defendants to recover attorney’s fees when they prevail in court. 

Here’s to robust online communications, and to eliminating government censorship online and everywhere else. Jon Katz

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