Imagine a business with a thousand happy customers. Imagine now that the business was, in just a few months, decimated by a single unhappy customer, an ex-employee, or even a competitor. The Internet, which gives access to the multitudes to participate in the information age, is subject to abuse. The Supreme Court has likewise recognized that “through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”¹

It only takes one well-placed Internet posting to send a company to the grave. It is remarkable how inexpensive and easy it is for a motivated individual to put up a Web post or Web site, and market it through the search engines with “Search Engine Optimization” tools such as SEOElite™, article writing, listing, meta-tag writing, typo-squatting, and blogging. All one needs to do is achieve prominence for one’s posting on the search engine ranking “above the fold” for the victim’s name. If the target of such a post is not a Fortune 500 company, their Internet presence is usually weak, such that the defamatory posting will be able to wreak havoc with their reputation, decimating the business. Enter now the so-called “gripe sites” that promote their pages to the search engines using various optimization techniques, thus assuring prominence to any and all content posted on their pages even before it is posted. Some sites now charge a price to take down those pages!

Anecdotally, there are numerous examples of such postings—sometimes written by a competitor or ex-employee, sometimes from the vantage-point of a disgruntled former customer—destroying successful businesses. There are myriad examples from Internet chat rooms to blogs and “grudge” or “gripe sites” like http://www.scam.com/. Often, people can post anonymously and say whatever they want and it will still be published all over the Internet. Because they publish anonymous postings, the sites are sued fairly frequently—no doubt also because they are the ultimate publisher and deep pocket. Thus, often there is a “John Doe” listed as defendant.

All of the issues that arise in run-of-the-mill defamation actions tend to likewise appear in third-party Internet defamation matters. Although defamation cases involving the Internet are not unique to the extent defamation law is concerned, they are more complex than those against print media because (1) the Communications Decency Act (CDA) has, until recently, provided these Web site operators with a bulwark of immunity; (2) there are particular enforcement issues that arise even one makes it past the Communications Decency Act (CDA) and receives an injunction or is awarded damages; and (3) the date of publication and its continuing existence on the net complicate the statute of limitations and enforcement.

We need not fret, however. We can sidestep the CDA by becoming more tech-savvy, strategically filing our cases, and understanding the fast-ticking statute of limitations clocks.

The Communications Decency Act
Much has already been written about the CDA.² Its breadth and reach in Internet defamation cases is remarkable. At last rough count, at least one “gripe” Web site that allows anonymous postings about businesses had successfully defended 30 lawsuits on the basis of CDA immunity. It is unsurprising that Web site operators and owners are getting cocky.

The relevant provision of the CDA is § 230(c)(1), which provides:

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.

Plainly, the provision goes well beyond the First Amendment protections afforded print media under the Supreme Court’s jurisprudence. For example, under New York Times v. Sullivan and its progeny, a newspaper could still be liable for publishing an article, given to it by a third-party, if that article was demonstrably defamatory.

A Brief History of the CDA
The CDA was originally passed to fix a “loophole” in the law. In Stratton Oakmont, Inc. v. Prodigy Services Co.,³ the New York trial court held that Prodigy, a Web site operator, was liable for defamation. Prodigy decided to monitor some of the content in its posting sites for pornography and other offensive content (so that it could market itself as a family friendly site). The New York court held that this decision converted Prodigy into an “editor” of the entire site, making it liable for the things published on its pages.

Congress passed the CDA, at least in part, to relieve Web sites of the moral hazard of either leaving offensive, and maybe even illegal material, on their pages, or being subject to a cacophony of liability. The Conference Committee explains that § 230 overrules Stratton, and that “[t]his section provides ‘Good Samaritan’ protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable online material.” Section 230(c) is titled “Protection for ‘Good Samaritan’ blocking and screening of offensive material” and subsection (c)(2) restricts civil liability for actions taken to “restrict access to” objectionable material and to provide the means of doing so to others.

Why then, the need for (c)(1)’s wide-brush?⁴

The first major decision to construe the CDA was the Fourth Circuit’s opinion in Zeran v. AOL Inc., which held that the CDA makes a Web site liable for defamatory material posted on the Web site by a third party, even though the Web site has knowledge of the material’s likely falsity.⁵  From there, courts have largely stood fast, protecting Web sites from any liability that stemmed directly from their being in the shoes of a speaker or publisher. This includes immunity for “distributing” or “republishing” material posted elsewhere or a long time ago as that is tantamount to a publisher’s role.

Although the court did not recognize it as such, the CDA effectively treats Web sites as news media, regardless of their content, but actually provides more protection that the Supreme Court’s First Amendment jurisprudence provides to traditional print media. This is odd for the simple reason that abuses on the Internet can be far more pernicious and last for far longer. The Zeran decision effectively held that even if a plaintiff proves that the posting is false and defamatory, the court has no authority to order the posting’s removal or to order damages against the Web site for knowingly publishing the information.

“So” one might ask, “How do we get around the CDA?”

Getting around the CDA has for the most part involved showing that the Web site operator was responsible, in some measure, for the objectionable content. In several cases against Web sites that posted third-party comments, parties often make the allegation that an employee or manager of the Web site had a hand in drafting the posting.

These allegations almost always prove to be baseless and if one peruses the case law, they will find sparse occasions where this turned out to be the case. On the other hand, those cases do show that plaintiffs have been subjected to sanctions, and certainly summary judgment. There are even examples of companies losing their shirts on the backs of such allegations.

There Is a Better Way
First, Sue in the Ninth Circuit

In Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC,⁶ the Ninth Circuit held that the Web site Roommate.com could be held to violate the Fair Housing Act’s provisions against housing discrimination, despite the CDA’s provisions, because the Web site asked questions that directly solicited the discriminatory content. The court construed the CDA’s definition of “information content provider” concluding that under the definition in the statute, one is an information content provider if one “in part” develops information provided through the Internet. The court further distinguished between “creation” of and “development” of content, arguing that the latter is a broader term. The outstanding issues are what it means to “develop in part” the content, i.e., the information.

Thus, at the very least, the Roommates case provides guidance to parties wanting to make it past a motion to dismiss and motions for summary judgment. For example, the court in Goddard v. Google dismissed the case at the pleading stage because “while Plaintiff might avoid § 230 immunity by alleging that Google, in addition to acting as an ‘internet content provider,’ also is an ‘information content provider,’ she has failed to do so in her complaint.”⁷ This suggests that one can simply plead their way past the CDA.

Second, Dig Deeper into the Web site—Look Under the Covers
But that obviously is not enough. Getting around the CDA basically requires that plaintiffs prove that the Web site had something to do with the content. There is an open question—or debate as it were—under Roommates. If the Web site operator is only responsible “in part” for some of the content, can it be responsible somehow for the entire page and therefore be ordered to take it down, pay damages, or both. The case itself suggests that a Web site operator will only be responsible for the content, i.e., be subject to damages stemming from—the content it is responsible for in whole or in part. In the case, there was a “Description” box where new members could post their preferences. This was held immune from the CDA even if members posted discriminatory material in that box because it was “neutral” as to the supposed content.

Thus, there is an opportunity to avoid summary judgment. Absent evidence of how the operator created conduct, attorneys who have the time, patience, and expertise in the technology and coding that runs the Internet and who can analyze how the target Web site works, have a new opportunity to create fact issues that would have to go to a jury.

A Web site is little more than an arrangement of text that a Web browser such as Firefox or Windows Explorer reads. Some of the text is displayed for the viewer—some is not. Some is meant solely for other entities. For example, search engines and Web sites speak a language and read content that is often hidden from the person viewing the Web site. But make no mistake, this stuff is content. Thus, things that the Web site adds—tags, meta descriptions, and other material can be alleged to be the Web site’s content. If the content is defamatory—having been published to Google, which in turn republishes the article—there are your damages.

In other words, we need to redefine the elements of defamation to correspond not only to the CDA jurisprudence, but also to adapt it to the Internet and how the Internet works. For instance, understanding how search engines read Web sites, as well as browsers, has opened new content that is fair game for plaintiffs to bring up as having been created by Web site operators. This content is still considered defamatory, and will, at the very least, get to a jury.

Most importantly, we need to re-evaluate what “speech” is on the Internet. As the district court in ACLU v. Reno recognized

Because of the different forms of Internet communication, a user of the Internet may speak or listen interchangeably, blurring the distinction between “speakers” and “listeners” on the Internet. Chat rooms, e-mail, and newsgroups are interactive forms of communication, providing the user with the opportunity both to speak and to listen.⁸

The Internet differs widely from the “marketplace” envisioned by John Stuart Mill and our forefathers when they wanted to protect free speech. Even the Supreme Court, hearing the appeal of the Reno case recognized that the Internet is so different from other forums, that “our [prior First Amendment] cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”⁹

Injunction and Enforcement
Finally, let us say you have won damages and an injunction, what next?

Before getting too excited, it is important to note two things. First, this is still virgin territory. There is a stark paucity of law or precedent that really gets into the technology in the way suggested here. Although I believe that that is the key to making sense of the law—our duty no less—it will also take some ingenuity in classic lawyering as well to make the pieces—the old canons and the new tech—fit together.

Second, there is likely to be a significant effect on the ability to get a broad injunction. If the Web site has allowed third-party posting, only some of which is defamatory, it is unclear whether any court would order an injunction to remove the entire posting. Roommates itself suggested that while some parts of the content on the Web site was “developed” in part by the Roommates defendant, other content was not, and the Web site was not liable for the latter content. This suggests a strict causation standard for damages, and more importantly, for injunctions. The First Amendment implications favor narrow injunctions, and the usual rule that injunctions should be narrowly tailored to fit their remedial purpose also presages a court ruling that carves thinly.

Moreover, collecting damages will continue to be an issue. This is often the trouble if the defendant is a small-time shop—they leave! Or else they have looted their Web sites of all cash, leaving a dollar or two. Thus, successful plaintiff attorneys often end up with upset clients who want the defamation taken down, but there is no one to do it. Expectations must be managed.

Watch Out for the Statute of Limitations
Although this may seem out of order, there are two, albeit related, statute of limitations issues that arise with respect to Internet defamation that are absolutely critical to be aware of. It was not excised in its entirety because it is too critical to be left out.

Typically, defamation statutes of limitations are one or two years, accruing at the time of publication. This is not a problem for slander because it is ephemeral, or for libel in print media because the “print issue” is published once, and then disappears. Thus, under traditional circumstances, the shortened statute of limitations is not problematic because the nature of the publication restricts the degree to which defamation can be damaging, and it would be unusual for there to be new audience to the defamation after the sunset of the limitations period.

But what if the defamation is published, and never goes away, as happens on the Internet? Plaintiffs are out of luck. Not only is it the case that a Web page can stay on the Internet, and come up in search engine rankings forever or as long as the Web site owner chooses to keep it up there, but courts have held that the statute of limitations begins to accrue on the date the defamation was first published. This turns on whether, as a matter of state law, the “first publication” rule applies to libel in mass media—but most states have adopted that rule.

Thus, the obvious “continuing violation” tolling mechanism is impotent. The Fifth Circuit, for example, held that because Texas has adopted the first publication rule

the continued availability of an article on a Web site should not result in republication, despite the Web site’s ability to remove it. Perhaps more important than the similarities between print media and the Internet, strong policy considerations support application of the single publication rule to information publicly available on the Internet.”¹⁰

The case cites several other courts in other jurisdictions holding likewise.

Thus, it usually does no good to argue that the persistence of the defamatory piece on the Web site somehow extends the period, or that each new “click” on the page containing the piece constitutes a “new” publication restarting the clock. Both theories have been tried. Both have failed.

One novel issue has arisen for us, however. Consider this “hypothetical”: What would happen if a defamatory piece were published in a newspaper in Y-1, and then four years later in Y-5, was posted on the Internet for the first time. How a court would rule in such a circumstance depends on whether the later Internet publication was part of a routine “Internet archive” process, i.e., no thought went into publishing that particular piece, or whether there could be some other way around the courts’ proclivities to protect defendants from stale matters.

Conclusion
The CDA is an important piece of legislation. It allows for a free flow of information, as well as for Web sites like Facebook and LinkedIn and Yahoo! chat rooms to exist for us all to enjoy at little or no cost. The goal is not to gut the CDA. It is, however, being abused.

Those of us who love protecting our business clients would hate to see them taken down by a lone gunman with a BlackBerry and Web access. The disproportionate effect one person, allied with the right gripe site, can have on the Internet should scare all business people and individuals.

Thus, short of a legislative fix, which does not appear to be forthcoming, the solution is to delve into the meat of the problem: the technology, the hidden recesses. Is that not where the best ideas come from anyway?

  ¹ Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).
  ² 47 U.S.C. § 230.
  ³ 1995 WL 323710 (May 24, 1995 N.Y. App. Div. 1995).
  ⁴ Judge Easterbrook points out in Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003), that the structure of the CDA’s broad immunity under (c)(1) would immolate the incentive presumably provided in (c)(2) for ISPs) and other Web site operators to govern their sites.
  ⁵ See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
  ⁶ 521 F.3d 1157, 1172 (9th Cir. 2008).
  ⁷ Goddard v. Google, Inc., 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008).
  ⁸ ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996).
  ⁹ Reno, 521 U.S. at 870.
  ¹⁰ Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 145 (5th Cir. 2007).

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