a most uncommon carrier: online service provider immunity against defamation claims in blumenthal v....

8/10/2019 A Most Uncommon Carrier: Online Service Provider Immunity Against Defamation Claims in Blumenthal v. Drudge

1/12

*J.D. 1999, Columbia Law School. Mr. Masur thanks Andrew L. Shapiro, William K. Jones, and

Lance Liebman for feedback on early drafts. This article represents the views of the author only and is

not to be attributed to any client or employer of the author.

WINTER 2000 217

ARTICLES

A MOST UNCOMMON CARRIER:

ONLINE SERVICE PROVIDER IMMUNITY

AGAINST DEFAMATION CLAIMS IN

BLUMENTHAL v. DRUDGE

Joshua M. Masur*

ABSTRACT: Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), found that theCommunications Decency Act of 1996 extended statutory immunity against a libel claim

to any online service provider that republished material, whether the republication was

automatic or volitional. This result is not mandated by the ambiguous statutory text and runs

counter to the vast body of common law distinguishing common carrier immunity fromliability for volitional republication. As the decision laments, this result is at odds with

public policies underlying libel law. This article examines the evolution of republication

liability and immunity in Internet and analogous telephone case law and proposes an

alternative reading of the statute.

CITATION: Joshua M. Masur, A Most Uncommon Carrier, Online Service ProviderImmunity Against Defamation Claims inBlumenthal v. Drudge, 40 Jurimetrics J. 217228

(2000).

Why should [America Online] be permitted to tout someone as a gossip

columnist or rumor monger who will make such rumors and gossip

instantly accessible to AOL subscribers, and then claim immunity

when that person, as might be anticipated, defames another?

If it were writing on a clean slate, this Court would agree withplaintiffs. . . . AOL is not a passive conduit like the telephone com-

pany, a common carrier with no control and therefore no responsibility


2/12

Masur

1. Blumenthal v. Drudge, 992 F. Supp. 44, 5153 (D.D.C. 1998).

2.Id.

3. 47 U.S.C. 230(c)(1) (1999).

218 40 JURIMETRICS

for what is said over the telephone wires. . . . But Congress has made a

different policy choice by providing immunity even where the interac-

tive service provider has an active, even aggressive role in making

available content prepared by others. . . .While it appears to this Court that AOL in this case has taken

advantage of all the benefits conferred by Congress in the Communica-

tions Decency Act, and then some, without accepting any of the burdens

that Congress intended, the statutory language is clear: AOL is immune

from suit, and the Court therefore must grant its motion for summary

judgment.1

Thus did Judge Paul L. Friedman of the United States District Court for theDistrict of Columbia find America Online immune from civil liability in

Blumenthal v. Drudge2for the allegedly libelous statement of one of its contentproviders. The immunity provision in question, section 230(c)(1) of the Communi-

cations Decency Act, reads in pertinent part: No provider . . . of an interactivecomputer service shall be treated as the publisher or speaker of any information

provided by another information content provider.3However, section 230(c)(1)was crafted to immunize online service providers who choose not to police the

content on their systems. That is to say, it was intended to protect acts of omission,to ensure that service providers would incur no liability for failure to exert the fullrange of their contractual power. Blumenthal, by contrast, found an act of

commission protected, a subject upon which the language is silent or at leastambiguous.

Thus,Blumenthal may protest too much when claiming juridical impotence inthe face of legislative language and intent. As a matter of statutory interpretationand policy, the application of section 230 is not so clear-cut. Indeed, becauseimmunity is an exception to the rule of common-law liability for republication, if

there is any clear result, it is the one the decision claims to find preferable butprohibited.

Part I of this article examines the development of service-provider liabilityboth before and after the 1996 passage of section 230. Part II discusses the facts of

Blumenthal.Part III suggests a distinction between the treatment of volitional and

nonvolitional defendants based on the statutory language. Part IV discussesstatutory ambiguity in the apparent failure to speak to the defendant who providesboth information content and information services. Finally, Part V proposes thatsection 230 should be read as consistent with the common law, immunizing

defendants based not on their status, but on their acts or omissions.


3/12

A Most Uncommon Carrier

4. Only one decision,Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), has been rendered

by a federal appellate court. Half of the remaining cases have been rendered by trial courts applyingor

in one case, unaccountably failing to applyNew York common law. SeeCubby, Inc. v. CompuServe,

Inc., 776 F. Supp. 135 (S.D.N.Y. 1991); Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710

(N.Y. Sup. Ct., May 24, 1995); Lunney v. Prodigy Servs. Co., Inc., 683 N.Y.S.2d 557 (App. Div. 1998).

5. See Robert Schmidt,Federal Court Watch: Blumenthal v. Drudge, LEGAL TIMES, Mar. 9, 1998,

at 1 (observing that [n]o federal court has ruled on whether [section 230] applies to people like Drudge,

who are paid to post content on a system.).

6. 376 U.S. 254 (1964).

7. See, e.g., Curtis Publg Co. v. Butts, 388 U.S. 130 (1967) (extending the actual malice

standard ofNew York Timesto public figures as well as public officials); Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) (distinguishing liability standards for general and limited purpose public figures).

8. SeeDOMINICK VETRI,TORT LAW AND PRACTICE226 (1998) (The general common law rule

is that a person has no duty to act for the protection of another person unless his conduct created the risk

or there is a special relationship between the parties.).

9. Telecommunications Reform Act of 1996, Pub. L. 104-104, 110 Stat. 147 (1996) (codified inscattered sections of 15 U.S.C. and 47 U.S.C.).

10. 776 F. Supp. 135 (S.D.N.Y. 1991).

11.Id.at 137.

WINTER 2000 219

I. THE DEVELOPMENT OF SERVICE-PROVIDER

IMMUNITY FOR DEFAMATION

Cases involving service-provider liability for defamation have been surpris-ingly infrequent and of relatively narrow precedential reach.4Blumenthalstands

alone in considering service-provider liability for a volitional act rather than avolitional inaction, a nonvolitional act, or nonvolitional inaction.5These distinc-tions are significant. The lynchpin in the development of modern defamation caselaw isNew York Times Co. v. Sullivan,6in which the Supreme Court held that the

First Amendment protected defendants who took out a literally inaccurate butsubstantially correct newspaper advertisement from liability for defamation.NewYork Times and its progeny turn fundamentally on the questions of volition or itsabsence, as embodied in the actual malice standard, which requires knowledgeof or recklessness as to the truth or falsity of the statement. 7Furthermore, actions

rather than omissions have historically been the focus of tort law, and courts havebeen reluctant to find liability for failure to act.8

A. Case Law Prior to the 1996 Act

Cases on service-provider liability decided prior to the TelecommunicationsReform Act of 19969consider New York defamation law. Before enactment of that

legislation, they were consideredwhether properly or notto demarcate thepoles of potential immunity and liability.

In Cubby, Inc. v. CompuServe, Inc.,10the defendant online service providerhad contracted with outside companies to manage, review, create, delete, edit andotherwise control the contents of its special interest forums.11One of those

managers subcontracted with another company to publish electronically a daily


4/12

Masur

12. See id.

13. See id.at 138.

14.Id.at 140 (quoting Lerman v. Flynt Distrib. Co., 745 F.2d 123, 139 (2d Cir. 1984)).

15. 1995 WL 323710 (N.Y. Sup. Ct., May 24, 1995).16. See id.at *1.

17. The case was dropped pending appeal in exchange for Prodigys apology, but the judge

refused to vacate his ruling, in part because he believed that online libel law had a real need for some

precedent. Margaret A. Jacobs, Will Promise of Silence Pass Tests in Court?, WALL ST.J., Dec. 14,

1995, at B1 (quoting Judge Ain). In an exchange redolent of preadolescent playground spats, the parties

disagreed as to whether Prodigy actually apologized. Prodigy said that it was merely sorry if any damage

was caused, and that such a statement was not an apology. To quote a spokesperson, To apologize is

taking responsibility. Sorry is saying that we can sympathize but it wasnt our responsibility. Jared

Sandberg, Securities Company that Had Sued Prodigy Services for Libel Drops Suit, WALL ST.J., Oct.

25, 1995, at B7.

Unfortunately, Stratton Oakmontillustrates the maxim that bad cases make bad law. It appears that

Prodigy had the strongest defense possible in a libel suitthe putatively defamatory statements were

true. Stratton Oakmont, now defunct, is recognized to have defrauded investors out of tens of millions

of dollars before being barred from the securities industry. Chief of Two Firms Indicted in Case Tied

to Stratton Officials, WALL ST.J., May 24, 1999, at B12. Moreover, Prodigys lawyers apparently failed

to introduce contemporaneous terms of service, allowing the judge to rely on obsolete terms that allowedliberal content editing by the provider. See 1995 WL 323710, at *3 (citation omitted).

18. 800 F. Supp. 928 (E.D. Wash. 1992) (television network affiliate not liable for defamatory

statements made on the program 60 Minutesdespite ability to exercise editorial control).

220 40 JURIMETRICS

newsletter to the forum.12When the subcontractor allegedly defamed a competitor

in the newsletter, the competitor brought claims for libel, business disparagement,and unfair competition against the subcontractor, the contractor, andCompuServe.13

Relying on the common law doctrine that limits the liability of a distributor for

the contents of the publications it markets, the court granted summary judgment forCompuServe.

CompuServe has no more editorial control over [the] publication [at issue] thandoes a public library, book store, or newsstand, and it would be no more feasible

for CompuServe to examine every publication it carries for potentially defamatory

statements than it would be for any other distributor to do so. First Amendment

guarantees have long been recognized as protecting distributors of publications.

. . . Obviously, the national distributor of hundreds of periodicals has no duty tomonitor each issue of every periodical it distributes. Such a rule would be an

impermissible burden on the First Amendment.14

A contrary result was reached in Stratton Oakmont, Inc. v. Prodigy ServicesCo.15 When an unknown user of defendant online service providers bulletinboards used one to accuse a penny-stock brokerage firm of criminal stock fraud,

the firm sued for libel.16The court denied Prodigys summary judgment motion,reasoning that Prodigys contractual right to delete a defamatory message made ita publisher rather than a distributor.17

The court based the bulk of its analysis on negative implications and dictafrom two federal cases that found a republishing defendant immune from suit:

Cubby and Auvil v. CBS 60 Minutes.18 However, in Anderson v. New York


5/12


19. 320 N.E.2d 647 (N.Y. App. Div. 1974).

20. See id.at 648.

21. See id.

22. See id.at 649.

23. See id.

24. See id.

25. Jeffrey P. Cunard et al.,Internet Law Developments, inCOMMUNICATIONS LAW 1998, at 1054

(1998).26. H.R. CONF.REP. No. 104-458, at 194 (1996) (errata in original), quotedinBlumenthal, 992

F. Supp. at 52 n.13. As best as can be determined, there were no similar decisions finding liability for

failure to restrict access when the right to do so was reserved under contract.

WINTER 2000 221

Telephone,19 the New York Court of Appeals had held that a local telephone

company was immune from similar liability to that proposed under Stratton

Oakmont.Andersoninvolved an answering machine, owned by the defendant Bellsubsidiary and leased to a subscriber, that played recorded messages accusing aBishop of the Church of God in Christ of such misdeeds such as fathering

illegitimate children.20After the plaintiff notified the telephone company of themessages and their content, telephone company employees listened to them but didnot discontinue service.21

The plaintiff sued for libel, but New Yorks high court, the Court of Appeals,determined that the company was immune because it merely provided the facilities

for a telephone call through which caller and callee communicated directly.22Thecompanys failure to prevent the continued transmission of the offending messagewas merely a passive act of omission.23The court analogized the defendants leaseof the communications equipment to that of a sound amplifier or a typewriter and

denied liability absent some volitional act by the supplier making the actualspeakers speech its own.24

B. The 1996 Act and Section 230

Although Stratton Oakmontwas but an unpublished summary judgment denialthat ignored clearly controlling precedent, it struck fear into online serviceproviders. From the outset, the decision was widely criticized as creating a

disincentive for [service providers] to monitor their services for inappropriate orillegal conduct.25 Online service providers lobbied Congress for legislationoverruling Stratton Oakmont; this effort culminated in section 230 of theTelecommunications Reform Act of 1996. The legislative history and context of

section 230 make apparent the intention of its drafters:

One of the specific purposes of this section is to overrule Stratton-Oakmont v.

Prodigyand any other similar decisions which have treated such providers and

users as publishers or speakers of content that is not their own because they haverestricted access to objectionable material.26

C. Post-Section 230 Case Law


6/12

Masur

27. 958 F. Supp. 1124 (E.D. Va. 1997), affd 129 F.3d 327 (4th Cir. 1997).

28.Id. at 1126.

29.Id.at 1133.

30. See Zeran, 129 F.3d at 332-33.

31. 26 Med. L. Rep. 1032 (Cal. Super. Ct.1997).

32.Id.at 1032.

33. 683 N.Y.S.2d 557 (App. Div. 1998), affd, No. 164, 1999 WL 1082126 (N.Y. Dec. 2, 1999).

34.Id. at 558.

35.Id.at 560 (quotingAnderson v. New York Tel. Co., 36 N.Y.2d 746, 750 (1974) (Gabrielli, J.,

concurring)).

36.Id.at 563.Lunneycontains one odd line of reasoning: it assumes only grudgingly and for thesake of argument that a statement of fact to the effect that the plaintiff is a bully who has threatened to

sodomize a scout leaders sons would be defamatory.Id.at 560. Otherwise, however, the case is a fine

exposition of the common law of defamation.Lunneyis further discussed infra Part V.B.

222 40 JURIMETRICS

Other thanBlumenthal, all post-1996 cases considering section 230 service-provider immunity for defamation concern anonymous or pseudonymous speech

by service users. These cases, to the degree that they rely on section 230, find noliability for service providers in Stratton Oakmont-type situations.

InZeran v. America Online, Inc.,27someone impersonating the plaintiff postedadvertisements on America Online claiming to offer for sale t-shirts and otheritems with slogans glorifying the bombing of the Alfred P. Murrah Federal

Building in Oklahoma City.28The trial court found that section 230 immunitycould not be challenged once the plaintiff had conceded that defendant AmericaOnline was an interactive computer service and the defamatory materials werenothing but information provided by another information content provider.29

The Fourth Circuit affirmed, adding that even if the plaintiff could prove thatAmerica Online neglected to remove the defamatory material despite actualknowledge of it, section 230 nonetheless would immunize the provider.30

In Aquino v. Electriciti Inc.,31 the plaintiffs sued a service provider for

distributing anonymous accusations of an international conspiracy [led by theplaintiffs] to further Satanic Ritual Abuse of children as well as kidnapping,cannibalism, and murder.32In a five-sentence opinion, the defendants demurrerwas sustained based on section 230 andZeran.

Lunney v. Prodigy Services Co.33applied the same New York common law

that bred Cubby, Stratton Oakmont, andAnderson. An unknown person masquer-ading as the plaintiff, a prospective Eagle Scout, sent an allegedly defamatory e-mail to a Boy Scout leader.34Drawing onAnderson,Lunneyheld that the commonlaw of defamation protects nonvolitional service providers acting as commoncarriers. The court noted that immunity for common carriers obtains unless the

defendant has some editorial or at least participatory function in connection withthe dissemination of the defamatory material.35 However, Lunney declined toconsider section 230, holding its potential application to be merely an essentially

academic question in light of the common law outcome.36

II. THE ALLEGED LIBEL INBLUMENTHAL v. DRUDGE


7/12


8/12

Masur

47. Cunard,supranote 25.

48.Blumenthal, 992 F. Supp. at 50 n.9.49.Id.at 51.

50. 47 U.S.C. 230(c)(1) (1999).

51. See generallyITHIEL DE SOLA POOL,TECHNOLOGIES OF FREEDOM (1983).

224 40 JURIMETRICS

whether the defendant is a provider or user of an interactive computer

serviceis indisputable: America Online is a provider. The answer to the secondquestionwhether the defamatory statement was provided by anotherinforma-tion provideris far more difficult. Was the libel provided solely by Drudge ordoes America Onlines volitional activity make it a provider of the content, thereby

denying it immunity? As one commentator noted,

[Section 230] leaves unanswered the question of whether an [online service

provider] should ever be deemed to have exercised sufficient editorial control

(e.g., by way of selecting, editing, reviewing or commissioning the content) such

that it is deemed the publisher of information posted on its website or online

service (i.e., the information is not provided by another) .47

The court must have decided that Drudge alone was the provider of thedefamatory falsehood, but its clearest statement on the subject occurs in a footnote,which observes that the Blumenthals [did] not identify any evidence to supporttheir conclusory assertion that there are genuine issues of fact as to whether Drudge

was an employee or agent of AOL.48

Yet, the opinion explicitly acknowledges theexistence of such evidence:

Drudge was not just an anonymous person who sent a message over the Internetthrough AOL. He is a person with whom AOL contracted, whom AOL paid

$3,000 a month$36,000 a year, Drudges sole, consistent source of in-

comeand whom AOL promoted to its subscribers and potential subscribers as

a reason to subscribe to AOL.49

The record thus clearly establishes a dispute as to Drudges otherness andindependence from AOL sufficient to overcome summary judgment. That AOLarguably played the roles of both a passive service provider and an active

content provider should have led the court to analyze the application of section230 to a defendant who does not fit neatly into one box or the other.

IV. THE CONUNDRUM OF THE

MULTIPLE-STATUS DEFENDANT

While section 230 may immunize a provider or user of an interactivecomputer service, it clearly does not immunize an information contentprovider.50It is strangely silent, however, on how to treat a defendant who is, like

America Online, botha service and content providerthat is, when an entity is, indifferent contexts, both an immune common carrier of traffic without discrimina-tion as to content, and a liable authorial, editorial, broadcasting, or publishing entitythat affirmatively publicizes information.51


9/12


52. Communications Decency Act of 1996, 47 U.S.C. 223 (1999). See alsoReno v. American

Civil Liberties Union, 117 S. Ct. 2329, 2351 (1997) (overturning the CDAs provisions restricting

indecent Internet content in violation of First Amendment protections).53. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (concerning liability of a

newspaper defendant for allegedly libelous statements in a paid advertisement in which it played no

editorial role).

WINTER 2000 225

Blumenthal implicitly holds that [n]oprovider or user means that being a

provider is determinative: an access software provider or information contentprovider that is also an interactive computer service provider receives pervasiveimmunity for all its activities. But examining relevant hypotheticals calls thisrationale into question. If AOL were to contract with a provider called Hardcore

Pix of Kids by Kids for Kidsa variety of content that is far more relevant to theprovisions of section 230s parent, the Communications Decency Act52under thesame terms as Drudge, would a court have any qualms over applying vicariousliability? Similarly, if theNewYorkTimeswere to offer dial-in Internet access,would it suddenly be able to avoid liability for its advertisers statements, of the

variety that it has faced since its inception as a printed newspaper? 53Even more damning of this approach is the apparent preference it would create

for otherwise interchangeable business decisions. For instance, what if AOL wereto reorganize, dividing its content and service provision functions into separate

subsidiaries, AOLcontent.com and AOLaccess.com? Drudge, having contractedwith the content subsidiary, libels Blumenthal. Blumenthal then suesAOLcontent.com, rather than the parent company. It seems clear that section 230would fail to immunize AOLcontent.com by dint of its relationship withAOLaccess.com. It seems equally clear that the mere fortuity that the two functions

are combined in a single entity should not foreclose liability. To find otherwiseeffectively encourages any potential libel defendant to set up some form of onlineservice to avail itself of this putative contagious immunity.

V. AN ALTERNATIVE TO THEBLUMENTHAL

RULE: FUNCTION OVER STATUS

There is, fortunately, an approach to multiple-status defendant liability that

does no violence to the statutory language and dovetails with the common law.America Online is not, after all, a defendant for its actions as an interactive

computer service provider. Thousands of users had received Drudges libel by e-mail or the Web through service providers other than AOL. The Blumenthalsnamed AOL because the harm alleged was not merely providing accessto content,

but it wasproviding that content itself. In other words, AOL was brought beforethe court as a publishing entity, rather than as a common carrier.

A. Reading the Statutory Definitions of Content

and Service Providers


10/12

Masur

54. 47 U.S.C. 230(f)(2) (1999).

55.Id. 230(f)(3) (emphasis added).56. SeeLunney v. Prodigy Servs. Co, 683 N.Y.S.2d 557,561 (App. Div. 1998) (citing Anderson

v. New York Tel., 320 N.E.2d 647, 647 (N.Y. App. Div. 1974)).

57.Id.at 562 (citingAnderson, 320 N.E.2d at 647).

226 40 JURIMETRICS

A comparison of the pertinent statutory definitions is enlightening. A serviceprovider provides or enables computer access by multiple users to a computer

server, including specifically a service or system that provides access to theInternet.54In contrast, a content provider is responsible, in whole or in part,forthe creation or development of information providedthrough the Internet or anyother interactive computer service.55

As noted above, the gravamen of the accusation is not that America Online

provided access to the Internet, but that it provided defamatory information. In notviewing America Online as a content provider, Blumenthal effectively excisesresponsible . . . for from the statute, treating the definition of a content provideras limited to one who in whole or in part, . . . creat[es] or develop[s] information

provided through the Internet. Under a full reading of the statutory language, thequestion is whether America Online is responsible, in whole or in part, for thecreation or development of Drudges libel. Here, responsible connotescausation. If AOL in whole or in part caused the publication, then it is a provider

of the content.

B. The Common Law and Multiple-Status Defendants

Like much else in Internet law, the multiple-status conundrum did not arisewith the invention of the packet-switched network. With the advent of commoncarriage as a legal concept came the need to determine the limits of the immunityit afforded. The common law rule is clear: carrier immunity is functional, notpervasive, and does not extend to the carriers own speech or that in which it plays

some volitional role.

Lunneyplaces service-provider liability squarely in the common law traditionof telegraph and telephone companies. Drawing on the New York Court ofAppeals decision in Andersonand its antecedents, Lunney finds common law

qualified immunity dating back to the days of the telegraph.56The common law

states that a telecommunications company can be considered a publisher of those

messages in whose transmission it actually participates. It does not hold that such

a company, if it were to participate in the formulation of the text of one or two

messages, would thereupon expose itself to liability based on the text contained

in the millions of other messages in whose transmission it did not participate. . . .What matters is [whether] there is . . . proof that any such control was exercised

in connection with the transmission of the messages complained of by the

plaintiff.57


11/12


58. United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Isbrandtsen Co. v. Johnson, 343

U.S. 779, 783 (1952)).

59. The most famous critique is that of Llewellyn, who contrasted the canonical

thrustStatutes in derogation of the common law will not be extended by constructionwith an

equivalent parrySuch acts will be liberally construed if their nature is remedial. Karl N.

Llewellyn,Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes

Are to Be Construed, 3 VAND.L.REV. 395, 401 (1950).

60. See, e.g., United States v. Bestfoods, 524 U.S. 51, 63 (1998) ([T]he failure of the statute to

speak to a matter as fundamental as the liability implications of corporate ownership demands

application of the rule that [i]n order to abrogate a common-law principle, the statute must speak

directly to the question addressed by the common law.) (quoting United States v. Texas, 507 U.S. at

534).

61. See id.62. H.R.CONF.REP. No. 104-458, at 194 (1996) (emphasis added), quoted inBlumenthal, 992 F.

Supp. at 52 n.13.

63.Bestfoods, 524 U.S. at 63.

WINTER 2000 227

Section 230 was intended to overrule Stratton Oakmont. Since that case wasan inaccurate statement of the common law, we must ask what the statutory

modification left intact. The Supreme Court has reaffirmed time and time again thelongstanding . . . principle that [s]tatutes which invade the common law . . . areto be read with a presumption favoring the retention of long-established andfamiliar principles, except when a statutory purpose to the contrary is evident.58

While the common law nonderogation canon has rightly been subjected to scrutiny

due to its frequent tension with the canon requiring broad interpretation of remedialstatutes,59it remains a valid interpretative tool.60

When a statute is ambiguous or silent, yet threatens to wreak fundamentalchanges on well-established and fundamental common law rules, application of the

canon is mandated.61On one hand, the language of the statute itself is silent abouthow to resolve a defendants status conflicts. On the other hand, the legislativehistory indicates clearly that the statutory purpose is only to overrule . . . decisionswhich have treated . . . providers and users as publishers or speakers of content that

is not their own because they have restricted access to objectionable material,62

not to immunize them when they actively distribute that material. Section 230 thuscries out for application of the canon, and its failure . . . to speak to a matter [thatis] fundamental requires a narrow construction.63

Functional line-drawing appears to be the only fair, effective, and accurate

manner to interpret the statute. Differentiating a common carrier acting as suchfrom one that acts as a republisher provides immunity where appropriate, yetmaintains liability where immunity is inappropriate. Such an interpretation wouldmaintain the clear common law standards for republication liability where itremains unchallenged, yet negate the dubious precedentStratton Oakmontat

which section 230 was squarely directed.


12/12

Masur

64. Cubby, 776 F. Supp. at 143 (applying New York law, and citing Ramos v. State, 34 A.D.2d

1056, 1056 (N.Y. App. Div. 1970)).

65. This is not an abstract and diffuse threat. One neutral outline on the subject squibs the case as

holding that [t]he CDA provides immunity to an interactive computer service provider even where the

provider has entered into a licensing agreement with the third party that posted the allegedly defamatory

material and where the provider actively marketed the third partys postings. John B. McCrory et al.,

Constitutional Privilege in Libel Law, inCOMMUNICATIONSLAW1998 (1998) (emphasis added). Shouldsuch a reading become the standard for such cases, the distinction between the immune common carrier

and the liable republisher will be eviscerated, to the detriment of those who attempt to remedy invasions

of their privacy through the dignitary torts.

228 40 JURIMETRICS

Blumenthalholds that so long as the content in question was initially preparedby a third party, a service provider has absolute immunity under section 230,

notwithstanding its active role in the republication at issue. There is no other wayto read the case, for the undisputed fact is that AOL posted Drudges defamatorymaterial on its service. At common law, that active republication would suffice tomake AOL liable, for a service provider may be held vicariously liable for the tortof an independent contractor if it ha[s] taken an affirmative, active part in its

commission.64Under theBlumenthalanalysis, liability fails.ShouldBlumenthals interpretation of section 230 be followed and an entitys

volitional publications be immunized merely because the entity provides onlineservice, the effect could cripple libel law in the electronic age.65Those who are

concerned about the ability of individuals to continue to redress invasions of theirprivacy and dignity in the information age would do well to wish theBlumenthalrule a rapid demise.

a most uncommon carrier: online service provider immunity against defamation claims in blumenthal v....

Documents