Some have suggested that Internet Service Providers (ISP) should bear some of the responsibility for harm caused by cyberbullying. Under traditional defamation law, three entities can be held liable for libelous remarks: the speaker or author, primary publishers with editorial control, and distributors who knew or had reason to know of libelous material but did nothing to remove it.
After a New York court in Stratton Oakmont, Inc.v. Prodigy Services Corp. found that an ISP that withheld editorial control over content should be treated like a newspaper publisher for purposes of a defamation lawsuit, Congress enacted the Communication Decency Act (CDA) of 1996. Under the CDA, ISPs cannot be held liable as the publisher or speaker of content posted by third parties. Additionally, ISPs cannot be held liable if they remove objectionable content in good faith. Congress felt that, in order to allow the internet to function and grow effectively and to encourage new developments, ISPs should not been held responsible for what users post.
The CDA as it applies to ISP liability was tested in Zeran v. America Online, a 4th Circuit case from 1997. In Zeran, the Court of Appeals held that, even though AOL had been contacted regarding defamatory postings and had failed to remove them, the CDA shielded AOL from any liability. Importantly, the Zeran court highlighted Congress' intent to foster free speech by giving ISPs immunity from tort liability when passing the CDA.
Not all courts have chosen to follow Zeran, indicating that it may not be the final word on ISP liability. The 7th Circuit, for example, has "questioned whether§ 230(c)(1) creates any form of “immunity.” Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 669 (7th Cir. 2008), but at least five other circuits have held that the CDA gives ISPs broad immunity.
Congress could amend the CDA to make clear its intent to shield ISPs from all liability, or, as some have called for, amend it to require, at a minimum, that ISPs to remove content that is hurtful to minors upon request. Until then, however, ISPs will usually be an ineffective target in redressing cyberbullying behavior.
Sources:
Cara J. Ottenweller, Cyberbullying: The Interactive Playground Cries for a Clarification of the Communications Decency Act, 41 Val. U. L. Rev. 1295 (2006-2007).
For a discussion of author liability, see the Civil Defamation page on this site
For discussion of publisher liability, see Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
For a discussion of distributor liability, see Grace v. eBay, Inc., 16 Cal. Rptr. 3d 192 (Ct. App. 2004).
Stratton Oakmont, Inc.v. Prodigy Services Corp., 1995 WL 323710 (N.Y.Sup.), 63 USLW 2765, 23 Media L. Rep. 1794 (N.Y. 1995).
Communications Decency Act, 47 U.S.C. §230.
Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).
Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008).
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Monday, July 9th 2012 at 10:25AM
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