Republication in the Internet age

One question that has troubled members of the legal community for decades is how the law should treat one who does not create, but rather repeats, a defamatory falsehood?

In most jurisdictions, one who repeats a defamatory falsehood is treated as the publisher of that falsehood and can be held liable to the same extent as the original speaker. This principle, called republication liability, subjects newspapers, magazines, and broadcast news stations to liability when they publish defamatory letters to the editor and advertisements. Republication liability also makes it possible for a journalist to be sued for libel over a defamatory quote he includes in a story, even if the quote is accurate and attributed to a source.

Republication liability, however, works differently on the Internet. In 1996, Congress passed Section 230 of the Communications Decency Act, a law that limits the extent to which Internet service providers and websites can be held liable for republishing content created by third parties.

According to Eric David, a First Amendment attorney with the law firm Brooks Pierce, Section 230 “is the most important statutory development to protect . . . [mass communicators] in a long time.”

Understanding Section 230

Section 230 states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Section 230 becomes easier to understand when two terms are explained.

The first is “interactive computer service.” Courts have said this term is broad enough to include Internet service providers, news sites, blogs, social networking sites, and electronic newsletters.

The second term is “information content provider.” According to Section 230, this term includes anyone who “in whole or in part” creates or develops “information provided through the Internet . . . .” An individual who posts a user comment on a Web site would be classified as an “information content provider” because he was responsible for the post’s “creation or development” and used the Internet to provide the post.

So, in basic terms, Section 230 protects the providers and users of “interactive computer service[s],” a term that includes ISPs and news sites, from being considered publishers of content provided by third parties.

Section 230’s protections are often invoked in lawsuits for libel, which require a plaintiff to show (among other things) that a defamatory statement made about him or her was published. For example, if a third-party user posts a defamatory comment on a news site, the news site will not be treated as the publisher of that comment and will be protected by Section 230 in a subsequent libel suit. Section 230, however, will not protect the third party who posted the defamatory comment.

The protections offered by Section 230 are not absolute, however. Section 230’s protections will not apply to content an interactive computer service creates on its own. If a reporter for a news site writes a defamatory sentence in an article, the news site will be treated as the “information content provider” of the defamatory sentence and be unable to invoke Section 230’s protections. Many jurisdictions also hold that an interactive computer service can lose Section 230’s protections by materially contributing to the alleged unlawfulness of third-party content.

Examples of How Section 230 Can Protect Your News Site

Although not a complete list, what follows are examples of how Section 230 can protect the providers and users of your news site.

User Comments

Under Section 230, a provider or user of an interactive computer service will not be treated as the publisher of user comments posted by third parties. Collins v. Purdue University, a district court case from the U.S. District Court for the Northern District of Indiana, displays this principle.

In Collins, the plaintiff sued the publisher of a news site, Federated Publications, Inc., for libel over comments third-party users posted on the news site. Concluding Federated was an interactive computer service, the court ruled Section 230 shielded Federated from liability. The court wrote, “Federated can be held liable for defamatory statements in its own material published on the website — such as the article if the article was defamatory — but cannot be held liable for the publication of remarks or postings by third parties.”

Section 230 also permits interactive computer services to remove and make minor editorial changes to user comments. As the Court of Appeals for the Ninth Circuit wrote in Fair Council of San Fernando Valley v. Roommates.com, “A website operator who edits user-created content—such as by correcting spelling, removing obscenity or trimming for length—retains his immunity for any illegality in the user-created content,” provided that the edits do not materially contribute to the content’s alleged unlawfulness.

According to Patrick J. Carome, a partner at WilmerHale, “editing third-party content . . . in a way that makes the third-party content defamatory” would be one way to materially contribute to the content’s alleged unlawfulness and lose the protections offered by Section 230. The Roommates.com court gave this example:

[A] website operator who edits in a manner that contributes to the alleged illegality — such as by removing the word “not” from a user’s message reading “[Name] did not steal the artwork” in order to transform an innocent message into a libelous one — is directly involved in the alleged illegality and thus not immune.

Retweeting or Sharing on Social Media

Although no court has directly addressed the issue, Chip Stewart, a media law professor at Texas Christian University, expects Section 230’s protections to extend to those who retweet or share content created by third parties on social media.

“From looking at parallel cases, it looks like Section 230 will protect the users [of Facebook and Twitter],” Stewart said.

According to Stewart, social media account holders would most likely be classified as “user[s] of an interactive computer service” under Section 230 and thus entitled to the statute’s protections when retweeting and sharing third-party content.

As with user comments, Section 230 should permit users of social media to make minor editorial changes when retweeting or sharing, but users should keep alterations to a minimum.

“[I]f you were to summarize another’s tweet [instead of simply retweeting it],” Stewart said, “you may start to assume liability.”

Selecting User Comments for Publication in a News Story

It has become common for news sites to republish user comments and social media posts (especially tweets) in stories discussing reactions to newsworthy events. But it is not clear whether Section 230 would protect such a use.

Although no court has decided such a case, Eric David and Chip Stewart expect Section 230’s protections to extend to the practice of republishing user comments and social media posts in stories. As David put it, “Taking a comment from below the story and putting it in the story . . . deserves to be and would be protected under Section 230.”

If such a case were ever heard, Jones v. Dirty World Entertainment Recordings LLC, a case from the U.S. Court of Appeals for the Sixth Circuit, and Batzel v. Smith, a case from the U.S. Court of Appeals for the Ninth Circuit, would likely play prominent roles.

In Jones, decided this June, the Sixth Circuit ruled that Section 230 immunized a gossip Web site, TheDirty.com, from a defamation suit after the site selected and then published defamatory posts regarding the plaintiff that were uploaded to the site by anonymous third parties.

The court held that TheDirty.com’s decision to “select the statements for publication” “did not materially contribute to the illegality of those statements.” Quoting from the opinion of the Fourth Circuit in Zeran v. American Online, Inc., the court in Jones wrote, “The CDA expressly bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter content.’”

In Batzel, the defendant received an allegedly defamatory email from a third party, which he then published to a listserv. Before publishing the email to the listserv, however, the defendant made minor wording changes to the email and included a short “moderator’s message.”

The Ninth Circuit wrote that Section 230 should protect those who decide to publish and make minor editorial changes to third-party content. The court added, however, that Section 230’s immunities will only apply in situations where the third-party content was provided for “publication on the Internet.’”

Because user comments and social media posts are provided for “publication on the Internet,” under the holdings from Jones and Batzel, a news site’s decision to republish those comments and posts in news stories should receive protection under Section 230. As noted, however, when republishing material created or developed by third parties, one should be careful not to materially alter the content’s underlying meaning.

Including a Defamatory Quote Obtained by a Reporter in a News Story

A more difficult question is whether Section 230 would immunize a news site that published an interview conducted by one of its reporters in which the reporter’s source made a defamatory statement.

Carome described the question as “an open issue” and said “there is at least a plausible argument” that Section 230’s protections would apply.

According to Carome, such a case may turn on whether, under Batzel, the source knew he was providing the quotes for publication on the Internet.

Also relevant would be whether, in the court’s opinion, asking a question that leads to a defamatory response constitutes “the creation or development of information.” If it does, the news site would be deemed an information content provider under Section 230 and thus be afforded the statute’s protections.

Not everyone believes Section 230’s protections will extend this far. As David put it, “Section 230 is not meant to immunize a reporter who goes out and gets and then republishes someone else’s defamation.”