In the age of free-wheeling personal expression online — from intense comment generating to the free-for-all of website postings — sudden concerns of liability for user-generated third-party content have loomed large with a legal drama involving a pending decision in a controversial defamation lawsuit.
The issue at hand: Should Nik Richie, the owner of gossip website TheDirty.com, have censored derogatory user comments to an online article about a former high-school teacher and ex-Cincinnati Bengals cheerleader, who had an affair with her teen student? At the core of this standoff is First Amendment rights versus defamation liability. With the Internet providing more abundant opportunities than ever before for wide-reaching public speech, what responsibility, if any, do site and blog owners have when it comes to posts and comments from detractors, hecklers, and crazies?
Perhaps even more so than the plaintiff, on the brink of their seats waiting with bated breath for the court’s decision are the world’s largest Internet companies. Nine out of 10 of the largest sites — Facebook, Amazon, Microsoft, Twitter, Gawker, BuzzFeed, and eBay, among others — have weighed in by filing friend of the court briefs in support of TheDirty.com’s position that a lower district court erred in awarding over $300,000 in damages to the plaintiff. TheDirty.com has argued that defamation damages, if any, should be sought from the individual who made the posting, not from the publisher that hosts the content and user-generated comments.
Their big concern in a nutshell: Will large computer companies have to employ an editorial army of redactors to shield them from liability? Will imposed civility on the Internet become law? The intensity of this concern centers on having to review and censor all online posts on sites they host, as wide ranging as a user-review on Amazon.com to comments on a news article or a YouTube video. Imagine Mark Zuckerberg being constantly summoned into court over user postings on Facebook.
The Supreme Court may have to weigh in on the particulars of an obscure section of the Communications Decency Act of 1996 that has been interpreted by federal courts as offering up immunity to computer service providers as not being culpable "speakers" for information posted by a third party. In this case, the lower court ruled that TheDirty.com lost this immunity because the website’s owner commented on posts regarding Sarah Jones. This stands in stark contrast to hundreds of federal court decisions upholding the protection offered under the Communications Decency Act.
It could take weeks or months for the Cincinnati-based Court of Appeals to issue its decision following recent oral arguments before the three-judge panel. But regardless of the outcome, you can count on the losing party appealing to the US Supreme Court to hear the case. And what we can count on even more will be continued ripples of concern echoing throughout the Internet space as in-house counsel, business leaders, marketers, and bloggers worry if their sites could be swept up next in expensive-to-defend and high-potential-liability-if-lost defamation lawsuits.
In the meantime, counsel for TheDirty.com has warned that the Court of Appeals ruling against it would initiate an Internet meltdown. It’s likely this parallels the deep current of anxiety rippling through not only leading Internet companies but every website owner out there who fears that we’ll be immersed in an Orwellian online future of chilled free speech. In that case, the ruling slogan would be, "When in doubt, redact the comment out."
Stacy DeBroff is founder and CEO of Mom Central Consulting. You can reach her at firstname.lastname@example.org.