The Communications Decency Act and It’s Effect On Online Libel
- Please remember to consult an attorney. This should not be considered legal advice.
Online defamation is any false statement, presented as fact, which is published online and which is injurious to the subject’s reputation, whether through neglect or malice. If you have been the victim you do have legal options, but they are quite limited. Most of the legal issues are covered in the Communications Decency Act of 1996.
The Communications Decency Act (or CDA) of 1996 was the first real attempt by the U.S. Congress to get involved in the regulation and censoring of pornographic or obscene material. The Act was Title V of an omnibus bill called the Telecommunications Act of 1996. The CDA was first introduced to the Senate Committee on Commerce, Science, and Transportation by James Exon, a Democrat from Nebraska, and Slade Gorton, a Republican from Washington.
The law’s purpose was to stop, or inhibit, the profusion of pornography, and other obscene material. The word used in the text is “indecent”, but it remains undefined throughout the bill, with no legislator willing to create a definition which clearly articulates what indecency is without including art or creative writing. Indecent remains a term which is subjective in nature—meaning each person’s idea of what is indecent varies wildly. While some find particular art “indecent”, some would find it perfectly fine. The same goes for humor or writing.
What is clearcut about the act is that it upholds the illegality of defamation, whether slander or libel, on the Internet. However, Section 230 of the CDA specifically exempts Internet Service Providers from liability for defamatory comments. The courts have defined the term “Internet Service Providers” quite broadly, though. This broad interpretation of Section 230 has served to protect Internet Service Providers and third-parties from litigation concerning libel or slander online.
Bloggers, for example, can be sued depending upon their relation to the defamatory content. If they publish the content personally, then they are liable. However, if their blog’s comment section is host to the defamatory comment, then they are acting as an Internet Service Provider and are not liable for the damage to your reputation. To the extent that they act as a third-party, allowing users to use their blogs as communicative outlets, they are exempt from any responsibility whatsoever.
Even in the event that bloggers edit these comments, guest editorials, or republished material—they cannot be held liable. The sole exception to this is if the editing process itself creates defamatory comments, e.g., changing “Chris is not a murderer” by removing the “not”. Similarly, any forum website, wiki, or chat site cannot be held responsible for the defamatory statements of its users. This is true regardless of whether the website has posting guidelines or not—those guidelines have no bearing on who is liable for which comments. Section 230 of the CDA also makes clear that republishing defamatory content is not illegal, assuming the republisher does not add his or her own two defamatory cents.
Also of interest is that bloggers cannot be legally penalized for deleting any comments left on their blogs (the same goes for owners of other Internet Service Providers). However, as noted above, they are also not legally required to do anything of the sort.
Public persons are unique in online defamatory law because they are not afforded the same protections as private citizens. Any public figure, elected official, celebrity, or person involved in a major event must prove that their defamer knew that their comment was false or acted recklessly, neglecting to ascertain the veracity of the claim. This means that individuals who could reasonably be viewed as “public persons” have an extra high hurdle to jump in order to successfully sue someone for defamatory comments—this was done in an effort to protect the Freedom of Speech, especially in the political arena.
It is important to note that context is important in any of these cases. For example, the well-known satirical news website “The Onion” prints many statements which might be regarded as libelous if they were read individually, but in the context of the website and its purpose—the statements are not meant to be taken seriously and are therefore an example of non-libelous false statements. Many political websites are treated similarly because in context the statements are understood to be hyperbole (for example, if one calls a politician a “crook” or a “thief”).
While the CDA provides some level of protection to those who have been defamed, it largely concerns Internet Service Providers. Section 230 protects ISPs by exempting them from liability for users’ defamatory comments. In an increasingly anarchic environment such as the Internet, it can be difficult to sort out the legal issues regarding defamatory statements. While this Act was instrumental in shaping online defamatory legal policy, it does little to define what a victim of defamation is entitled to in terms of legal protections. What it does clearly define, especially in Section 230, is who is exempt from liability in the case of defamation.
Here we can find the actual text of the entire bill, passed in 1996, including the CDA and Section 230.
The Electronic Frontier Foundation has an excellent run-down of what Section 230 means and how it is interpreted by courts.
Traverse Legal Attorney and Advisors maintains a website which gives frequent opinions, updates, and news regarding the CDA and Section 230.