Friday, May 20, 2016

Internet Immunity and the Communications Decency Act

Internet immunity has been a thorn to those who have been the subject of comments on the web.  Cyberbullying, on line harassment, and libel has had a long-lasting impact on those who have been the subject of the content posted.  The purposes for the posts and what is stated online is varied.  Some have a personal effect and driven by a relationship experience.  Others could be attributed to a reaction for a service not provided to the liking of the customer.  And there are some that are a form of anti-competition to ruin the reputation of a competitor.  They are indeed varied.  The manner in which the comments have been treated is as well varied with some commonality with regard to the distinction of the commenter from a medium in which the comments are displayed online.

Previously posted notions on this subject touched on the Anti-Slapp action testing Florida’s provision in Roca Labs, Inc. v. Consumer Opinion Corp.  In its original lawsuit, Roca Labs argued that the defendant’s consumer review website was fostering defamation, effectively causing tortuous interference, committing unfair competition.  The defense argued immunity under Section 230 of the Communication Decency Act, formally known as Internet Freedom and Family Empowerment Act.[1]  The court determined that defendant’s posting of just excerpts of the post placed by the user were not actionable.
The issue of republication[2] was as well discussed regarding a defamatory content of a commercial nature where a link was provided to another site that directed the reader to read defamatory content about the plaintiff.  The court reasoned that linking to a site where the content about the plaintiff resided did not constitute republication.  The Communications Decency Act, Section 230 has not applied to republications and under common law, linking defamatory content to a site is not deemed tantamount to “republication” in the context of defamation.   As is found in some online defamation actions, the plaintiffs have had difficulty in providing support for their claim that the comments had anything to do with their business decline.  Courts do weigh the evidence provided by plaintiffs and they determine those statements that just appear as an opinion from those stated not for a fact in nature.
The worry of many clients, aside from comments deemed just opinion and the anonymity of commenters, is the immunity granted to websites that serve as a platform along with the anonymity in which the statements can be made.  The Communications Decency Act sets an immunity for these sites but it is based on qualifiers.[3]   Any chance of a suit along these lines to be successful will require the suit to be directed at the content provider and not the internet service provider (ISP).  The only exception to this is if there is evidence that the ISP exerted some form of discretion is wording or selection of content. Providing the vehicle for which commenters can express their voice does not expose the service provider to liability by itself.  Once the service provider exercises editorial discretion in determining the selection of submitted material or its content, the website immunity will be questioned as a publisher.   
Cyberbullying and online harassment, and even commercially motivated comments seem to have an indelible mark on reputations in this digital realm of communications.  Reputation management is a way to address the gaps that currently allow for privacy terms and conditions in user agreement to protect the identity of the commenter.  It is fair to say the internet service providers and interactive internet providers are not the ones making the harmful comments and their exposure liability for the posted comments should be distinguished from the liability of the commenter, in the traditional sense of the speaker.  The immunity granted on the web is a  delicate concept loaded with qualifiers and the Communications Decency Act  has a valid role to play in our online life against websites that foster disparaging comments. Online immunity is after all not a given fact.   

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2016, all rights reserved Lorenzo Law Firm, P.A.



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