Question of Internet providers and liability lobbed into Supreme Court

Monday, April 13, 1998

The U.S. Supreme Court could settle the question of when Internet service providers are liable for defamatory comments posted by third parties if it agrees to hear Zeran v. America Online, Inc., a case recently appealed to the high court.

The Zeran case arose after an anonymous party posted a message on an AOL bulletin board advertising the sale of “Naughty Oklahoma T-shirts” with tasteless slogans concerning the Oklahoma City bombing. The message told interested parties to call Mr. Kenneth Zeran and provided his home phone number.

As a result of this message, Zeran received a high volume of harassing phone calls. The calls became such a nuisance that he received police protection and contacted the FBI.

Zeran alleges that AOL was negligent in failing to remove the defamatory messages after the company received adequate notice that the comments were false. AOL contends it removed the questionable messages quickly on at least one occasion.

AOL has argued that it is immune from liability because of Section 230 of the Communications Decency Act, only parts of which were struck down last year. Section 230 states that “no provider or user of information of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

A federal district judge initially dismissed the lawsuit and then, last November, the U.S. Court of Appeals for the 4th Circuit issued a similar ruling. The 4th Circuit ruled that “Section 230 … plainly immunizes computer service providers like AOL from liability for information that originates with third parties.”

The appeals court reasoned that imposing notice-based liability on Internet service providers for the speech of third parties “could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability.”

Patrick Carome, the attorney representing America Online, said: “The Zeran decision by the 4th Circuit is important, because it recognizes that imposing liability on online news services when they act as conduits for other parties' speech would have a serious chilling effect on speech in the electronic medium.”

Robert O'Neil, founder of the Thomas Jefferson Center for Free Expression, also agreed that imposing liability on Internet service providers for defamatory messages would “force ISP's to become speech cops and would genuinely chill free-speech over electronic communications.”

Free-speech and cyberlaw expert Eugene Volokh of UCLA said: “There are three basic standards a court can take with respect to ISP liability for third-party defamatory comments: treat the ISP as a newspaper publisher, treat the ISP as a bookstore distributor or treat the ISP as a phone company in which there would be no liability for the transmission of defamatory information.”

Volokh explains that the path chosen by the 4th Circuit in Zeran was the third option, that of treating AOL as a phone company. “The Communications Decency Act, as interpreted by the Zeran decision, basically says that even if Internet service providers are told there is defamatory material, they will not be liable unless they somehow provide the material or engage in some type of joint venture in posting the libelous comments,” he said.

According to Volokh, the Zeran decision is positive from the perspective of the Internet service providers and their users, “because, for instance, AOL users do not want America Online to be liable for defamatory comments, because the net effect will be that

if someone complains about comments, most likely AOL will remove them.”

The 4th Circuit recognized Volokh's point when it wrote that “[f]aced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.”

However, John Edwards, a Roanoke attorney who represents Zeran, says “the phone line analogy is a false one to make with America Online because a phone company cannot remove a defamatory comment once it has been transmitted.”

Edwards said that “giving immunity to Internet service providers, in the manner interpreted by the 4th Circuit, would undercut the whole purpose of the Communications Decency Act, which was designed to encourage good-faith blocking of defamatory material.

“The 4th Circuit focused exclusively on the publisher provision of the CDA but failed to recognize that the law was really designed to protect those who engage in good- faith blocking of offensive material, not to grant wholesale immunity. AOL had notice of the defamatory material and failed to respond in a proper fashion,” he said.

Leo Kayser, another of Zeran's attorneys, said: “The 4th Circuit ignored the context in which the statute arose. AOL should be treated as a distributor under a notice standard, rather than as a publisher with absolute immunity.”

AOL attorney Carome offered no prediction on whether the Supreme Court would review the 4th Circuit's decision. Edwards acknowledged that “the odds are small” that the court would agree to hear the case, but added, “There is no way to predict when the Supreme Court will take a case.

“In our view the court should take the case in order to lay down some guidelines in this area of the law. Internet communications have such a tremendous impact on the way people conduct their lives. We need some guidance,” he said.