Violated Online by Steven Wyer

Author:Steven Wyer
Language: eng
Format: epub, mobi
Publisher: Dunham Books
Published: 2011-04-15T04:00:00+00:00

Limits

Section 230’s coverage is not complete: it excepts federal criminal liability and intellectual property law. 47 U.S.C. §§ 230(e)(1) (criminal) and (e)(2) (intellectual property); see also Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001) (no immunity for contributory liability for trademark infringement). In Perfect 10, Inc. v. CCBill LLC, 481 F.3d 751 (9th Cir. Mar. 29, 2007; amended opinion issued May 31, 2007) the Court of Appeals ruled that the exception for intellectual property law applies only to federal intellectual property law, reversing a district court ruling that the exception applies to state right of publicity claims. Cf. Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion), but see Doe v. Friend Finder Network, Inc., 540 F. Supp.2d 288 (D.N.H. 2008) (230 does not immunize against state IP claims, including right of publicity claims). The Friendfinder court specifically discussed and rejected the Ninth Circuit’s reading of “intellectual property law” in CCBill and held that the immunity does not reach state right of publicity claims.

Section 230 is controversial because several courts have interpreted it as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. See, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998), which held that Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” This rule effectively protects online entities, including user-generated content websites, that qualify as a “provider or user” of an “interactive computer service.” However some criticize Section 230 for leaving victims with no hope of relief where the true tortfeasors cannot be identified or are judgment proof.

For example, the plaintiff in Zeran was clearly defamed by an unidentified user of AOL’s bulletin board, but was unable to bring suit against the original poster due to missing records. Since Section 230 barred Zeran from obtaining damages from AOL, he obtained no redress for the harms the messages caused, including death threats that required the involvement of the FBI.

1. Court Decisions on Section 230

2. Defamatory information

• Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997).[2]

Immunity was upheld against claims that AOL unreasonably delayed in removing defamatory messages posted by third party, failed to post retractions, and failed to screen for similar postings.

• Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998).[3]

The court upheld AOL’s immunity from liability for defamation. AOL’s agreement with the contractor allowing AOL to modify or remove such content did not make AOL the “information content provider” because the content was created by an independent contractor. The Court noted that Congress made a policy choice by “providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others.”

• Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003).[4]

The court upheld immunity for an Internet dating service provider from liability stemming from third party’s submission of false profile.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.