The Communications Decency Act of 1996 (CDA) was congress’s first attempt to regulate pornographic material on the internet, and the act’s primary purpose was to protect children from viewing “obscene or indecent” material published on the internet. Essentially, the CDA criminalized knowing transmission of obscene messages and material to minors.
However, in 1997, the U.S. Supreme Court deemed this section of the CDA unconstitutional in Reno v. American Civil Liberties Union, saying it infringed upon First Amendment free speech protections. The court ruled that, though the government had an interest in protecting children from harmful materials, the CDA was an “unnecessarily broad suppression of speech addressed to adults.”
As a result, the CDA’s most important feature became known as Section 230, which many like to refer to as the “twenty-six words that created the internet.” Section 230 states that websites like Google and Facebook are immune from lawsuits based on claims related to content published by third parties.
An unintended consequence of Section 230, however, is that it has created at a space for false and defamatory statements made about individuals or businesses to flourish. A defamatory statement is one that contains an assertion of fact or implies an assertion of fact that is false or disparaging. These types of statements serve to cause harm to the reputation of a business or an individual.
Under traditional defamation law, a website might be considered a publisher or republisher of defamatory content and would therefore be held liable for the content. However, many websites simply couldn’t exist outside the protection of Section 230 because the legal liability would overwhelm them.
Certain websites such as Ripoff Report and Consumer Complaints Board are designed to cater to negative reviews. While these reviews might be helpful for consumers, the problem is that people can post any type of statement they want, even if it’s defamatory.
Because of Section 230, businesses may feel defenseless against online defamatory claims made about them. Though they can submit a complaint to the website and sometimes, the website will remove defamatory statements under certain conditions, this usually involves an arbitration process where someone must first prove their case. The website companies, themselves, cannot be sued.
However, there is a legal route around Section 230. An individual or business may not be able to sue the website for defamation, but they can file a lawsuit against the author of the defamatory statement posted on the website. Though the author of the defamatory statement may not be clear in some cases, there are processes of identifying them. For example, a subpoena can be issued so that the website must identify the author through their IP address, email, or name provided. If that isn’t a possibility, a forensic linguistic expert can be hired to identify the author based on their writing patterns, punctuation, and style.
If a court order or injunction that requires the website to remove the statements can be obtained, the injured party can then send it to Google and they will remove it from their search index.
The good news is that, despite Section 230, businesses and individuals are not completely defenseless against defamatory statements made about them online. An attorney specializing in online defamation can help.