Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

 At Volokh Conspiracy, Eugene Volokh flags a brief article that he coauthored with Adam Candeub that was recently published in the Journal of Free Speech Law. Here's the abstract:

[Communications Decency Act] Section 230(c)(2) immunizes platforms' decisions to block material that they "consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The ejusdem generis interpretive canon suggests that "otherwise objectionable" should be read "to embrace only objects similar in nature to those objects enumerated by the preceding specific words."

In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on "the basis of its political or religious content" were not viewed as generally permissible, even in electronic communications.

Candeub and Volokh argue that "otherwise objectionable" material should not be interpreted as a catch all category, but should instead be construed in light of the other terms in Section 230(c)(2)'s list of materials. As a result, they urge that Section 230(c)(2) be read as immunizing Internet companies and websites from restricting "obscene, lewd, lascivious, filthy, excessively violent, or harassing communications," and that the statute not be read to immunize these actors from the removal of content that is objectionable based on its political content.

I think there are several problems with this argument. With the caveats that these are my initial impressions and that it's been a while since I've done intensive research into Section 230, these concerns are listed below. I've tried to list my objections in order of most technical and specific first, followed by broader points.

First, I think the ejusdem generis interpretive canon has less power in the particular context here because Section 230(c)(2) immunizes platforms' decisions to block "otherwise objectionable" content rather than "other objectionable" content. The latter wording would be a clear example of specific terms followed by a general term, and would be in line with most examples in Candeub's and Volokh's article which involve statutes listing examples, followed by "other" things. But the way the statute is actually worded includes the term, "otherwise," which suggests material that is objectionable in ways that are distinct from the preceding examples. Candeub and Volokh do not address this, and their esjudem generis argument therefore seems stronger than the language of the statute warrants, as it implicitly reads the statute as prohibiting "other objectionable" content rather than "otherwise objectionable" content.

Second, this reading takes an overly narrow view of the purpose of the provision it analyzes and the Stratton Oakmont, Inc. v. Prodigy Services Co. case that played a significant role in prompting the inclusion of the provision. In Stratton Oakmont, the plaintiff sued a website message board for defamation based on several allegedly defamatory posts from message board users. The plaintiff alleged that the message board was liable because it exercised editorial control over the message board, noting that the site set forth detailed content guidelines that discourage the posting of "insulting" notes, as well as notes that "harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community" stating that such content would be removed when brought to the site's attention. The court cited this choice to engage in this editorial control as opening up the site to greater liability than other sites that did not take such measures. 

Congress was aware of this case when it passed Section 230, which Candeub and Volokh recognize. But they only focus on remarks from legislators who cite the blocking of material that is not "family-friendly," which (sort of) lines up with their restrictive reading of the statute. But this narrow focus ignores the extent of editorial restrictions at play in Stratton Oakmont, which included guidelines for the removal of "insulting," [non]-harmonious," and "bad taste" comments. It also suggests a narrow view of "family friendly," content, which may well exclude truthful, politically significant content such as images and discussions of war or terrorism, litigation and legislation over sexual privacy and abortion, and other such political content. Stratton Oakmont illustrated the danger of any sort of editorial policy giving rise to heightened liability, and Section 230(c)(2) was the response. Candeub and Volokh's narrow reading is inconsistent with this broad concern that prompted the immunity provision.

Third, a reading of the statute that removes immunity concerning the removal of political content while immunizing the removal of other content would run into significant First Amendment problems. Those who run websites or forums may have their own political preferences, and may moderate content based on these preferences. Limiting this ability would infringe on those providers' First Amendment rights--an aspect of online content moderation that is often ignored by Section 230 critics (and misinterpreters) who prefer to focus only on the purported rights of users.

To Candeub's and Volokh's credit, they recognize that the First Amendment may be relevant, but set it aside for the purpose of their article. Because of this, though, the article's analysis is in a misleading vacuum.  What is the point of this discussion about ejusdem generis if the First Amendment will ultimately require a different reading? Indeed, the First Amendment may well be relevant to discussions of interpretive canons: to the extent that the narrow reading of "otherwise objectionable" content leads to First Amendment problems, the canon of constitutional avoidance would weigh in favor of an expansive interpretation that avoids this issue.

These are my initial concerns with the conclusions in the article, but I'll be interested in seeing what others have to say--particularly those who are more involved in Section 230 research and litigation than me.

Airbnb Sues San Francisco, Alleges Violation of CDA Section 230

On June 27, 2016, Airbnb filed a complaint against the City of San Francisco in the U.S. District Court for the Northern District of California alleging that a recently-enacted ordinance requiring Airbnb hosts to register and post their registration numbers while renting their apartments on the Airbnb platform violates Section 230 of the Communications Decency Act (CDA), among other laws. On its website, Airbnb states:

Over the last year, we have held eleven town hall meetings to explain the registration process, repeatedly emailed hosts to encourage them to register, and convened scores of meetings with individual hosts to help walk them through the required registration steps. 

But instead of fixing the process, the Board of Supervisors recently passed a hastily-crafted proposal requiring Airbnb to remove all unregistered hosts. This legislation ignores the reality that the system is not working and this new approach will harm thousands of everyday San Francisco residents who depend on Airbnb. It also violates federal law.

Airbnb allows "Hosts" to rent rooms, apartments, or houses to "Guests" for varying periods of time. Hosts post listings for available spaces on the Airbnb platform, and Guests use the platform to locate and select listings.

Airbnb contends that the City's ordinance, which becomes effective on July 24, 2016, is preempted by CDA sections 230(c)(1) and (e)(3), which state:

(c)(1): 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.

(e)(3): Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. (emphasis added)

The new ordinance is here. Section 41A.5(l)(1)(F) requires apartment owners to register their apartments and include their registration number in any Airbnb (or other platform) listing. Sections 41A.5(c)-(j) permit civil and criminal actions against owners and housing platforms that violate the ordinance. In paragraph 5 of its complaint, Airbnb alleges that:

By requiring Airbnb to verify that each third-party rental listing has a valid registration number prior to posting the listing on their websites, and by imposing criminal and civil penalties for websites’ publishing of unverified third-party listings, the Ordinance violates the CDA, which preempts the enforcement of these provisions against Airbnb.

You can find additional coverage of the lawsuit here and here. G.S. Hans at Center for Democracy and Technology noted that the ordinance would run into problems with the CDA:

This imposition of liability clearly goes against Section 230, which states in (c)(1) that “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” — meaning that, if an information content provider, typically an individual user, posts something illegal, the interactive computer service, typically a website, can’t be held liable for it. Moreover, under (e)(3), “no liability may be imposed under any State or local law that is inconsistent with this section.” States and localities can pass laws that are consistent with Section 230, but anything inconsistent with Section 230 — like the imposition of liability on a website operator for user-generated content — is unlawful. From a logistical perspective, this makes a great deal of sense. If states and cities could enact a variety of conflicting laws, the whole point of Section 230 would be undermined. As a global medium, the internet wouldn’t work if it were subject to piecemeal regulations by every state and city within the US.

If the ordinance were limited to the Hosts renting apartments over Airbnb, the City would have avoided the Section 230 problem. As the ordinance stands, however, it appears to impose civil and criminal liability against Airbnb if Hosts advertise over Airbnb without including the proper registration numbers, Holding the Airbnb platform liable for the content (or missing required content) of its users' posts appears to violate Section 230, and Airbnb's lawsuit will likely succeed as a result.

Parents' Liability for Their Children's Online Conduct

The Wall Street Journal Law Blog has this interesting post about Boston v. Athearn, a recent case from the Court of Appeals of Georgia. From the Law Blog:

The Georgia Court of Appeals ruled that the parents of a seventh-grade student may be negligent for failing to get their son to delete a fake Facebook profile that allegedly defamed a female classmate. 

The trouble started in 2011 when, with the help of another student, the boy constructed a Facebook profile pretending to be the girl. He used a “Fat Face” app to make her look obese and posted profane and sexually explicit comments on the page depicting her as racist and promiscuous, according to court documents. 

When the girl found out about it, she told her parents who then complained to the school’s principal. The school punished the boy with two days of in-school suspension and alerted his parents, who grounded him for a week. 

But for the next 11 months, according to the appeals court opinion, the page stayed up. It wasn’t deleted until Facebook deactivated the account at the urging of the girl’s parents, the opinion said. The girl’s lawyer says the child’s parents didn’t immediately confront the boy’s parents because their school refused to identify the culprit for confidentiality reasons.

The full opinion of the court is available here.

The court emphasized that the parents had been notified of their child's online conduct, and pointed out that the nature of online defamation created an ongoing harm to the plaintiffs. From the opinion:

In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.

Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction. With regard to the instant action, we conclude that a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward. Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions). Accordingly, the trial court erred in granting the Athearns’ motion for summary judgment in part. (footnotes omitted).

Critics have spoken out against this ruling, arguing that it is undesirable or that the negligence lawsuit should have been barred by section 230 of the Communications Decency Act (CDA). I think that this ruling is far less problematic than the critics have argued, and I explain my reasoning after the break.

Ninth Circuit: CDA Section 230 Does Not Bar Failure to Warn Lawsuit Against Website

Under Section 230 of the Communications Decency Act (CDA), websites are generally not liable for harm caused by content posted by third parties. This is because the CDA provides that websites will not be treated as the publishers of that content for purposes of liability. 

To illustrate, if I post something defamatory on this blog, the person I defame may have a viable claim against me, but not against Blogspot or Google, the platforms on which this blog is run. I explain this law in more detail here.

Every once in a while, courts find that a website encourages the third party's harmful statements in such a way that the website can be liable. But these decisions are a rare exception to the general rule.

Yesterday, the Ninth Circuit released the opinion Doe v. Internet Brands, Inc., an important case that illuminates the boundaries of websites' immunity. While websites may be shielded from lawsuits that concern the statements of third parties, the websites may be liable in failure to warn lawsuits, since those causes of action do not require the inference that the website was the publisher of third parties' statements. While I think that the opinion reaches a correct result, the Ninth Circuit maintains that its reasoning is consistent with the underlying goals of section 230 -- a claim over which I have some doubts.

Sixth Circuit Reverses Defamation Judgment Against TheDirty.com

I blogged about this case, Jones v. Dirty World Entertainment, last November when the Eastern District of Kentucky held that a plaintiff who had been defamed by posters on the defendant's website could sue the website's owner. Following this holding, a jury found in favor of plaintiff, and the defendant appealed. Yesterday the Sixth Circuit vacated the judgment and held that the plaintiff's lawsuit was barred as a matter of law. The Sixth Circuit's opinion is available here.

The ACLU described the facts of the case shortly following the lower court's verdict:

TheDirty.com is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

Dirty World argued that it could not be sued since the defamatory content had been posted by third parties on the website. Under Section 230 of the Communications Decency Act (CDA), website owners are typically not liable for defamatory statements posted by third parties. The Eastern District of Kentucky ruled that The Dirty and Richie were not entitled to immunity under section 230.

From the Sixth Circuit's opinion:

Under the CDA, Richie and  Dirty World were neither the creators nor the developers of the challenged defamatory content  that was published on the website. Jones’s tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the  publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones’s claims.

The court admitted that sometimes a website owner may be found liable for content posted on the website if the owner takes its own steps to "develop" the offending content in a manner that materially contributes to that content's illegality. The court emphasized that this exception to 230 immunity was narrow, noting that a website owner's "encouragement" of users to post information that may end up being defamatory was not enough remove section 230 immunity from a website owner. The court also held that Richie's comments on the site did not subject him to liability:

A website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc. To be sure, a website operator’s previous comments on prior postings could encourage subsequent invidious postings, but that loose understanding of responsibility collapses into the encouragement measure of “development,” which we reject.

The court further noted that Richie's statements about the defamatory content were not the ones the plaintiff argued were defamatory, and held that Richie's statements did not materially contribute to the illegality of the original statements.

In reaching its holding, the Sixth Circuit follows a general trend of treating CDA, section 230 as granting very broad immunity for websites. Most notably, the court refused to hold that a website owner's posted reaction and approval of defamatory comments subjected the owner to liability by materially contributing to those comments' illegality. This means that plaintiffs will almost never succeed in a lawsuit against a website containing actionable third-party content, even if the owner of that website posts positive reactions to that content.

Recent Developments in Selfie Law

The Wall Street Journal Law Blog has a post discussing a recent lawsuit filed by Katherine Heigl against Duane Reed. Heigl argues that Duane Reed's tweet of a paparazzi photograph of her carrying bags from the store violates the Lanham Act by tricking consumers into thinking she endorses the store. The post notes that there is doubt over whether this suit would succeed, since Duane Reed's tweet may be considered a "communication" rather than an advertisement.

This follows about a month after the internet exploded with terrible copyright law discussions when commentators got it into their heads that Bradley Cooper owned the copyright to Ellen Degeneres' Oscar Selfie (See, e.g., here and here).

The BBC reports that:

Spending lots of time on Facebook looking at pictures of friends could make women insecure about their body image, research suggests.

Which leads me to (only sort of facetiously) wonder whether further research that solidifies a link between selfie-viewing and psychological harm could lead to liability lawsuits against the website (section 230 of the Communications Decency Act could add a fascinating wrinkle to this thought experiment).

Carmen Rasmusen Herbert writes (in one astounding paragraph) about how people may bully others by posting unpleasant comments on people's online selfies, raising the question of whether the insulted selfie-poster could fire back with a lawsuit for intentional infliction of emotional distress (perhaps by drawing on Esposito-Hilder v. SFX Broadcasting for support).

I couldn't resist searching for "selfie!" on Westlaw. I only found two cases involving selfies. In U.S. v. Doe, 2013 WL 4212400 (W.D. N.C. 2013), the court held that a magistrate judge could base the issuance of a search warrant on a police officer's assertion that individuals often take "unflattering" pictures of themselves, and that a suspects phone would therefore probably contain incriminating evidence. In U.S. v. Chaidez-Reyes, 2014 WL 547178 (N.D. Ga. 2014), the court mentioned the possibility that the government could have made similar argument in a cell phone seizure case, but pointed out that the government failed to make this argument.

Selfies implicate a surprising number of legal issues. It seems that there should at least be a law review symposium devoted to the phenomenon. Or perhaps a legal treatise. Smith on Selfies has a nice ring to it, after all.

Essay: Search Engine Liability for Autocomplete Defamation

I mentioned back in September that I had written an essay that was forthcoming in the Illinois Journal of Law, Technology & Policy.  The essay was recently published, and I have put the final version on SSRN.  Here is the abstract:

Several online search engines use autocomplete features that display search suggestions as users type search queries. This Essay investigates the potential for search engine liability for defamatory statements that are displayed through their autocomplete search suggestions. This Essay describes the technology involved, outlines potential defamation claims against search engines, and notes the obstacle presented by the Communications Decency Act (CDA). Recent legal developments limit the immunity that the CDA would typically provide to search engines and this Essay explores how prospective plaintiffs may take advantage of these developments. This Essay first discusses a potential argument from Fair Housing Council v. Roommates.com, LLC, but concludes that policy implications of this argument ultimately undermine its credibility. This Essay then turns to the less-explored case of Batzel v. Smith and concludes that Batzel provides a narrower, more direct argument against search engine immunity. This Essay concludes that prospective plaintiffs have a strong argument against search engine immunity. This removes a critical obstacle in the path of defamation claims.

Mitigating Damage to Digital Reputations

The BBC reports that Steps singer, Ian "H" Watkins is "furious" after Google's links to news stories apparently placed his photograph next to stories about a different Ian Watkins -- who is a convicted pedophile:

Google's algorithm appeared to be unable to differentiate between the two cases, taking a picture - from a BBC News article about the E! apology - and pairing it with a separate article by CBS News about the abuse. 

A Google spokesman added: "For some specific searches Ian H Watkins' picture is appearing in our results because he is relevant to the story, having received a court apology.

Watkins (I use this name to refer to Ian "H" Watkins unless I specify otherwise) reacted angrily to the news, posting this image of the offending search results on Twitter, and telling CBS News to "SORT THIS OUT":

Watkins received a court apology from E! Entertainment Television, who apparently ran his image with the story about the convicted pedophile, but it sounds like Watkins is still seeking some sort of remedy from Google.

In the United States, this type of claim against Google would probably be barred by section 230 of the Communications Decency Act.  If Watkins's photo appeared on a Google search result because the result linked to a news story that ran his photo with the story of the convicted pedophile, Google would not be treated as having published that photo because it was a third party who shared that photo online.  Under section 230, websites are typically immune from lawsuits arising from content that is posted on websites by third parties.  Google could argue that it is simply linking to a third-party's content, and the image posted by the author of that content.  Watkins may well have a successful claim against the news agency, though, and it sounds like he has already succeeded on some level with E!  But Watkins would probably not succeed against Google.

But even if Watkins were doomed to fail, he would do well to file the lawsuit anyway.  Today, in the aftermath of Watkins's lawyers approaching Google, a Google search of "Ian H Watkins" reveals these results:

Pretty much every result has to do with Watkins's complaint against Google (with the exception of the bearded man on the right -- who is the similarly-named convicted pedophile).  The overwhelming impression one gets from these results is that Google messed up and Watkins is calling them out.  Quite the opposite of an impression of Watkins being convicted of anything.

Even if Watkins takes no official legal action against Google, simply having his lawyers approach Google and claim damage is enough to focus the news on Google's mistake, rather than on news stories' mistaken identifications.

Franks on Section 230 of the Communications Decency Act

Mary Anne Franks writes a very interesting, approachable, and informative article on section 230 of the Communications Decency Act (CDA) over at HuffPost Tech reacting to Kevin Christopher Bollaert's (founder of the gossip website, The Dirty).  I wrote about the lower court's decision against Bollaert and his appeal earlier in this post.

As I have also mentioned previously, section 230 of the CDA is typically used to immunize websites from civil liability for posts made on these websites by third parties.

Some of Franks' most interesting discussion comes after the end of her post:

Stepping back, it is also important to consider Congress's goals in passing CDA §230. Popular rhetoric is selective on this point as well. It is true, as so often proclaimed, that the policy goals of §230 include the promotion and protection of free speech principles. Such principles are not self-evident, however. The law states that it is the policy of the Unites States to "preserve the vibrant and competitive free market that presently exists for the Internet... unfettered by Federal or State regulation." As an initial matter, whether the Internet really offers a "free market" for the exchange of ideas is a matter of considerable dispute, and the claim that the Internet is "unfettered by regulation" is demonstrably false (see above re: the thousands of laws that currently govern Internet activity). 

Moreover, free speech is not the only value protected by §230. The other, often overlooked goals of §230 include the development of technologies that "maximize user control over what information is received" by Internet users, as well as the "vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking and harassment by means of computer." In other words, the law is intended to promote and protect the values of privacy, security and liberty alongside the values of open discourse. Section 230 is an important and complex law, and it is both dangerous and inaccurate to treat it as a blanket license for online abuse.

I am not sure if I agree with all of Franks' final points -- but my views on section 230 have shifted before (I think the Michael Smith who wrote this paper would be much faster to agree with Franks), and they may shift again as I continue to think and learn more about these issues.  But whatever views one might hold on section 230, Franks' perspective is worth paying attention to.

Section 230 of the CDA and TheDirty.com

Over at the ACLU's blog, Lee Rowland posts about Jones v. Dirty-World Entertainment Recordings, LLC, a case that is on appeal before the Sixth Circuit.  Here is the link to the ACLU's amicus brief in that case.

The case involves section 230 of the Communications Decency Act.  This is a law I am interested in, having written about it before here.  Section 230 typically immunizes websites from material that third parties post on the website.  For instance, if I write something defamatory about somebody in this blog, that person can sue me, but Blogspot will be protected from suit by the CDA.  This law is generally praised by proponents of internet speech because it makes websites less likely to remove posted material for fear of incurring legal liability.  Critics argue that the law should be changed because section 230 immunity promotes anonymous, online harassment that websites don't need to police.  But proponents of the law reply that the law owes its existence to Congress's concern that websites should be able to police themselves without incurring liability, and that this policing can promote discussion while eliminating harassing remarks.

As for the facts of Jones, the ACLU states:

TheDirty.com is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

While websites are generally immune from user-posted content under section 230, the Eastern District of Kentucky held that the website here could be found liable for the various comments.  A jury then found in favor of the plaintiff and returned a verdict in her favor of $338,000.

Rowland takes issue with the court's initial finding that the plaintiff could sue the website in the first place:

The defendants claimed that Section 230 provided immunity because those posts were authored by a third party, but the judge (incorrectly) disagreed. He held, basically, that Richie was asking for it, due to the name of the site, Richie’s general “encouragement” of gossip, and his “adoption” of the anonymous defamation by wondering aloud why teachers are freaky. (It’s important to note that asking why all teachers are freaky is absolutely not itself defamatory, and no one in this case claimed otherwise.) 

. . .

The judge was flat wrong on the law. But this decision is even worse public policy. That’s because the essence of the trial court’s judgment was that by seeking critical, disparaging speech (gossip), Richie and TheDirty.com were actively seeking unlawful speech (defamation), and didn’t deserve immunity. But dirt simply doesn’t equal defamation. And equating the two would be disastrous for other sites that offer a wide array of extremely valuable speech. 

For example, consumer watchdog sites encourage users to submit reports of corporate malfeasance — speech that is inherently critical, disparaging, even damaging for the companies complained about. But Fraud.org is clearly a great public service, not a hub for criminal activity. Similarly, environmental activists at sites like Frack Check WV invite users to submit horror stories about fracking in their communities; the Bed Bug Registry asks users to report bed bug infestations.

I think that Rowland raises an interesting point about the danger of hinging the test for section 230 immunity on whether the website simply encourages unlawful or defamatory content.  Not only would such an approach be inconsistent with most of the cases on this subject, that approach would end up chilling a great deal of important speech.

But I think that the Rowland downplays the important fact that Nik Richie, the owner of the website, added his own commentary in the wake of the other defamatory comments.  And while Richie's comment, taken alone, may not be defamatory, in context, the comment seems to add to the message of the messages it responds to, and indicate that Richie is endorsing and promoting those other messages.

I don't think that this case calls for the clear denial of section 230 immunity -- the question of whether Richie's post was enough to adopt the message of the other posts could be argued in either direction.  At the same time, however, I don't think that Rowland is giving Richie's post the weight it deserves.

UPDATE: 6/17/2014

In the original version of this post, I incorrectly attributed the first block quote in this post to the Electronic Frontier Foundation (EFF).

Forthcoming Essay: Search Engine Liability for Autocomplete Defamation: Combating the Power of Suggestion

I have uploaded the current version of my forthcoming essay, Search Engine Liability for Autocomplete Defamation: Combating the Power of Suggestion, on SSRN.  The essay will appear in the Fall issue of the Illinois Journal of Law, Technology & Policy.  Here is the abstract:

Several online search engines use autocomplete features that display search suggestions as users type search queries. This Essay investigates the potential for search engine liability for defamatory statements that are displayed through their autocomplete search suggestions. This Essay describes the technology involved, outlines potential defamation claims against search engines, and notes the obstacle presented by the Communications Decency Act (CDA). Recent legal developments limit the immunity that the CDA would typically provide to search engines and this Essay explores how prospective plaintiffs may take advantage of these developments. This Essay first discusses a potential argument from Fair Housing Council v. Roommates.com, LLC, but concludes that policy implications of this argument ultimately undermine its credibility. This Essay then turns to the less-explored case of Batzel v. Smith and concludes that Batzel provides a narrower, more direct argument against search engine immunity. This Essay concludes that prospective plaintiffs have a strong argument against search engine immunity. This removes a critical obstacle in the path of defamation claims.

I have posted previously on the immunity provided to websites by section 230 of the CDA here and here.

Another Reason I Don't Like Section 230 of the Communications Decency Act

I mentioned section 230 of the Communications Decency Act in this previous post, but I will briefly discuss it again here.  Under section 230, plaintiffs are typically barred from suing websites for defamation or other causes of action arising from the conduct of third parties who post the offending material on the website.

Take this flagrantly defamatory post as an example.  This post contains almost all of the elements that make commentators upset about section 230.  For much of the post, the author implies that I have a criminal history so extensive that it reaches back beyond the date of my birth.  I would love to sue the author of this post, but unfortunately his blog and his posts are all anonymous.  The author does refer to me as a "fellow" law student, indicating that he too may be a law student.  While normally this would preclude recovery in a lawsuit due to insolvency of the defendant, the possibility remains that the author of this post is one of those lucky students who has received a job offer in these troubling economic times.

Could I sue Wordpress for accommodating this attack on my character?  The answer, unfortunately, is no.  Under section 230, Wordpress is not to be treated as the publisher of anything posted on its website by third parties.  Section 230 has been further interpreted that this will hold true even if Wordpress has a policy of policing and removing offending content.

Courts and the legislator justify section 230 because it promotes the use of online platforms and prevents chill that may arise in the event that websites could be sued for the conduct of third parties who post on the website.  This is an admirable goal, although it may need some revision in light of the internet no longer being a developing medium of communication and expression.  In the meantime, however, section 230 remains, and those of us who are defamed by anonymous fellow law students must continue to suffer.

Google Ordered by German Court to Limit Defamatory Autocomplete Results

It looks like I was too mired in finals to catch this story when it came out, but I just learned of it today.  Around last November I was clued into issues surrounding Google’s autocomplete by this story which prompted me to write an essay on whether similar litigation would succeed in the United States.  The essay is forthcoming in the University of Illinois Journal of Law, Technology & Policy, but I have not put it on SSRN just yet.

As I mention in the essay, lawsuits against websites and other internet content providers are often futile when the offending content has been provided by a third party.  This is due to §230 of the Communications Decency Act which states that internet content providers are not to be treated as publishers of information that is provided by third parties.  Courts have interpreted this provision to broadly immunize websites from lawsuits arising from content provided by third parties.  For this reason, there is an added obstacle to lawsuits against Google in the United States that may not be present in other countries.  This is because autocomplete results are formed by algorithms that monitor popular searches and suggest terms that are commonly associated with names or topics.  These users doing the searches may be considered third party content providers from whose conduct Google is immunized.  I argue in the essay that this obstacle may be overcome in the case of autocomplete defamation, however, since the information that is posted through autocomplete is not provided for purposes of posting on the internet, it is derived from individual searches that people do not expect to be broadcast to the world.

Courts are generally leery of imposing liability on websites because courts are worried that liability will chill internet speech.  Additionally, a concern that is particularly relevant for websites like Google is that the breadth of content they are dealing with is massive.  There is a strong argument that Google cannot be expected to monitor the output of its autocomplete algorithm with respect to all of its search terms.  This argument is weaker, however, if Google is required to remove offending content only upon notification by the person defamed.  This seems to be what the German court is requiring.

Successful lawsuits like the one in Germany are relevant to potential lawsuits in the United States because if Google complies with the resulting court orders, this compliance may serve as a model for how Google may regulate its content in the United States if plaintiffs successfully sue for defamation.  While theoretical arguments about chilling speech and restricting features may have persuasive impact, situations like the one in Germany may provide an opportunity to see the actual effects of restrictions on autocomplete, and show whether these theoretical concerns will play out in the real world.