Court Backs ISP Third-Party Immunity

Infotech and the Law David M.Nadler

David M.Nadler

Court Backs ISP
Third-Party Immunity

A federal district court recently affirmed, in Blumenthal v. Drudge, that a provision of the Communications Decency Act of 1996 immunizes Internet service providers from libel suits arising from information they publish or disseminate that is provided by third parties.

In the case, Sidney Blumenthal, an assistant to President Clinton, filed a libel suit against Matt Drudge, a conservative Internet gossip columnist, and America Online Inc., the world's largest Internet service provider.

The suit alleged that AOL and Drudge acted recklessly and harmed the Blumenthal family by publishing false and defamatory statements claiming Blumenthal had a history of spousal abuse that it had been covered up.

The story, authored by Drudge, appeared in his Drudge Report the day before Blumenthal began working at the White House. (Drudge later issued a retraction to the story.)

AOL made the offending issue of the Drudge Report available to its Internet service subscribers pursuant to a $3,000 per month contract it had with Drudge to display his daily reports.

Under libel law, telephone companies are not liable for defamatory communications transmitted over their telephone networks because they have no effective means of screening large volumes of telephone calls. But newspaper and magazine publishers and television and radio stations make decisions on content, giving rise to increased liability for libel.

A publisher may be held liable for republishing defamatory information, regardless of whether he or she knew or had reason to know the material was defamatory.

A distributor, such as a bookstore or library, however, must possess at least constructive knowledge of the information's defamatory nature.

The Blumenthals argued that AOL should be treated as a publisher and, therefore, subject to libel suits under the same standard applied to any publication.

The Blumenthals maintained that America Online should be held to the publisher standard because its contract with Drudge provided the right to edit the content of the Drudge Report, and AOL actively promoted the Drudge Report to its subscribers.

AOL disagreed and filed a motion for summary judgment, arguing that regardless of whether it was a publisher, the Communications Decency Act provided Internet service providers (ISPs) with immunity from libel suits arising from content provided by third parties.

The U.S. District Court in Washington was sympathetic to the Blumenthals' position and pointed out that because America Online possessed editorial rights and actively promoted the Drudge Report, AOL "is not a passive conduit like the telephone company ... with no control and, therefore, no responsibility for what is said over the telephone wires."

The court indicated that it was "only fair to hold AOL to the liability standard applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor."

Nevertheless, the court granted America Online's motion explaining "wisely or not, [Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others."

The court said section 230 of the decency act unambiguously provides that Internet service providers shall not be treated as the "publisher" or "speaker" of information provided by a third party content provider for the purposes of libel law.

The court's decision extended an earlier decision by the Fourth Circuit Court of Appeals that Internet service providers are immune from distributor liability for defamatory statements posted to their online bulletin boards by third parties.

The court determined Internet service providers cannot be liable for any efforts "taken in good faith" to restrict access to obscene, lewd, excessively violent, harassing or other objectionable information provided by third parties. These efforts may include blocking, editing content and requiring use of credit cards or adult age checks before allowing access to objectionable information.

Essentially, Congress provided Internet service providers with immunity from libel suits relating to information provided by third parties as an incentive for the Internet service providers to police the Internet for obscenity, child pornography and other offensive material. Congress reasoned that without this immunity, Internet service providers would be unwilling to block or screen offensive material for fear these efforts would render them liable as publishers.The Communications Decency Act does not bar all libel suits against Internet service providers.

A libel action may be brought against an Internet service providers with respect to material developed or created entirely by itself or where the Internet service providers has jointly developed the material and is a joint author.

David M. Nadler is a partner in the Washington firm Dickstein Shapiro Morin & Oshinsky LLP. He may be contacted at NadlerD@dsmo.com. Edward Kirsch, an associate with the firm, contributed to this article.


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