very well then: part II

This follows up on a previous post about Hugh Hewitt. The question: are bloggers liable for the defamatory statements left in the comments section?

Because I'm the sort who loves to fact-check, I've been digging through articles on the Blumenthal / Drudge affair on Proquest. Hewitt is right that the litigation in the Drudge case was long and expensive, but he ignores salient facts:

1. Blumenthal, who had sued Drudge for libel and AOL because it hosted Drudge(1), ended up settling by paying $2500 to Drudge (2), and lost his suit against AOL (3).

AOL's role, according to Bill Miller of the Washington Post:

The company believes it is protected by language buried deep in Section 230 of the Telecommunications Act of 1996, which 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."

AOL also cites two recent defamation suits against the company in which Section 230 was invoked. In Zeran v. America Online, a user posted false information about Kenneth Zeran, who was not an AOL subscriber. When Zeran called America Online and complained, it removed the messages immediately and terminated the account used to post them. Zeran sued anyway. A court ruled that AOL was not liable for content provided by someone else.

(Whether this was a good decision is debatable; as Ian Ballon writes, "The Fourth Circuit ultimately may have reached the right result in the Zeran case for the wrong reason" (4). A list of other relevant cases can be found here.)

The courts have consistently ruled in favor of protecting third parties from defamation suits involving 47 USC 230. Carafano v. Metrosplash.com sets an important precedent. From the 9th Circuit decision:

The Court then applied the law to the facts of this case. It held that "The fact that some of the content was formulated in response to Matchmaker's questionnaire does not alter this conclusion. Doubtless, the questionnaire facilitated the expression of information by individual users. However, the selection of the content was left exclusively to the user. The actual profile 'information' consisted of the particular options chosen and the additional essay answers provided. Matchmaker was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph" [emphasis added].

Comments on a blog would be a similar situation; the user, not the host, is liable for content, if I'm reading this correctly.

If I'm wrong, or if you know more about the situation regarding international law and the internet, let me know--and please, leave a comment.



Sources:
(1)"The Tangled Web of Libel Law; Suit Raises Questions of AOL's Function."
Linton Weeks. The Washington Post. Washington, D.C.: Aug 30, 1997. p. A.01

(2) "Blumenthal Pays $2,500 To Settle Drudge Suit." Wall Street Journal (Eastern edition). New York, N.Y.: May 4, 2001. p. B.8

(3) "AOL Off the Hook in Drudge Case; Internet Services Not Liable for Content, Judge Rules." Bill Miller. The Washington Post. Washington, D.C.: Apr 23, 1998. p. B.01

(4) Zeran v. AOL: Why the Fourth Circuit is Wrong. Ian Ballon. Journal of Internet Law. March 1998.