Reaction: Who's Liable for Defamatory Postings?

(This post is part of an assignment for the class I am taking, Global Impact of New Communication Technologies at the School of Journalism and Mass Communication, University of North Carolina at Chapel Hill. This week, I will be posting reactions to my classmates' entries from last week -here is my example-)

By Marcie Barnes

My classmate, David Shabazz, wrote a very interesting piece last week titled "Who's Liable for Defamatory Postings?" I chose to write about this one first because I was quite intrigued by the question. Is there really a debate about this? Really? If someone spray-paints some defamatory statements about me on a wall, do I go after Duron for making the paint, and sue the owner of the wall for supplying the canvas?

As David wrote about, this question first arose with Cubby, Inc. v. CompuServe (1991) - I agree with the general outcome - that CompuServe was not liable because they were identified as more of a distributor than a publisher. Which means that they were just supplying a means of communication and were basically ignorant to what was going on. However, the second case David mentions, Stratton Oakmont v. Prodigy Services case (1995), makes the subject even more interesting. Prodigy lost this one, because they were considered more of a publisher. Why? Editorial control. So, because they essentially had moderators and some automatic controls of what was posted, they became responsible for the content. Hmmmm...

In turn, Section 230 of the Telecommunications Act of 1996 was created to protect distributors and publishers alike: "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." Sounds to me like another way to say only the speaker is responsible for his words. Simple enough. However, David raises an interesting point: "The interpretation by the courts should be one where we strike a balance between having freedom to express ideas freely and being responsible for the content of potentially harmful messages." So, if I own a wall that someone spray-painted a defamatory message on, is it my responsibility to remove it to lessen the impact of it staying up for a longer period of time?

I am often on the fence when it comes to issues like this, and I can hear David's frustration with online entities that essentially do nothing. My take on it is this: of course the author of the defamatory comments is liable, and I think the entity that provided the "canvas" does have a responsibility to provide a safe and honest place for people to speak, I think they should make rules and make those rules clear, I think they have every right to enforce those rules. But I don't think they are liable, perhaps unless being found guilty of being blatantly irresponsible. The California Supreme Court agreed with me last year, and I agree with this quote from the ruling: "Subjecting Internet service providers and users to defamation liability would tend to chill online speech," As a blogger and forum moderator, I appreciate the protection. But I'm not sure blanket protection is wise, either. What do you think?