Dozier Internet Law is often engaged to evaluate legal risk relating to a website. We also handle a lot of defamation matters in which businesses or professionals are being defamed by a third party posting on a site. The first question is whether there is Section 230 immunity under the Communications Decency Act for the site hosting the content. It is not a simple analysis typically. Keeping the apparent legislative intent in mind, it appears the intent of Congress was commendable when the bill was passed and signed into law. Basically, the argument went, no one should be liable for everything published by third parties on its website since traditional publisher liability implies oversight and editorial control over the content. That does not exist in the online world for the most part.
But, I believe the unintended consequences of such far ranging protection are changing the way the Courts interpret the immunity statute. And for good reason. Dozier Internet Law has seen rampant misconduct occuring among bloggers, including "blog rings" formed to effectuate a "mobosphere" attack for financial gain. Remember that the higher the traffic to a blog, the more a blogger can realize from selling advertising, and the blog site itself can be sold. It's a sleazy world out there. Just follow the money, and the motivation for attacking legitimate businesses is often clear.
Any meaningful editing of the content, manipulation of the information, or even re-characterization of the information, should result in a loss of Section 230 immunity. It's as simple as that. And Dozier Internet Law is starting to see Courts agreeing with this approach. Congress should tighten up Section 230 to make it clear that immunity is not available to those sites materially modifying or editing the content, those practicing selective optimization of posts, or those relying on the information by changing the character of the published defamation. There is a line to be drawn that needs some work, though. For instance, merely adding up results and presenting those without further material enhancement or manipulation should be fine, like Ebay's rating system seems to do. But when a site takes information, feeds it into a mathematical equation, blends it with other information, and materially changes the method, manner and nature of the information presented, then there should be no immunity. No one should be able to act like a traditional publisher, editing and controlling the message, but avoid liability.
Either the courts will take care of this problem, or Congress will step in. Expect that on one side of the debate in Washington will be the liberal free speech advocates opposing any changes except those that would extend the immunity protections, and on the other side of the debate will be the conservative, small business lobbies trying to get rid of the immunity altogether. I'd be surprised to see any movement on this with the present Democratic leadership in place, but you may see something happen if the Courts continue to contradict each other and struggle with the issue. Congress doesn't like the Courts "legislating from the bench". We'll see how this all develops in the coming months as this issue gets more and more attention.
