At Dozier Internet Law we are often involved in evaluating the application of the immunity provisions of Section 230 of the Communications Decency Act. And one thing is readily apparent...there is a false sense of security and a rather expansive, and totally incorrect, analysis of what that immunity actually provides. We are often retained to evaluate for a client the business practices it should implement in order to take advantage of the immunity provisions of this statute. We also evaluate sites to determine whether immunity is available given their operations and practices.
And, what I have found is that there is a general misunderstanding in the blogosphere as to the scope of protections under Section 230. At Dozier Internet Law, it seems like I get alot of telephone calls from lawyers every week asking my assistance in going through this analysis. The first thing I tell them is to read, and then ignore, much of the commentary concerning Section 230 coming from the "far left". If businesses followed the advice of groups like Public Citizen, EFF, and all of their related comrades in arms out on the web, it would be foolhardy. Maybe their advice and comments are a result of a very narrow exposure to law, a lack of understanding relating to the business of the web, a bias towards the "information yearns to be free" mantra of the free speech expansionists, or more fundamental intellectual limitations.
Whatever their thought process is, the advice and guidance of the left wingers is way off base. As I said in a Continuing Legal Education program on online defamation I recently gave to lawyers, the Courts are restricting the application of the immunity. But you often do not even have to get into the analysis of what evolutionary changes are ocurring because Section 230 does not apply anyway in many circumstances.
There is a specific carve-out for intellectual property claims. The DMCA establishes a process by which a website, or web business, with third party content could be liable. Yes, they can be liable under many circumstances for "contributory copyright infringement". And there is a well recognized concept of "contributory trademark infringement" that creates liability for those knowingly assisting trademark infringers. That is why, for instance, the search engines police trademark infringement in their advertising programs (although "Public Citizen" has the nasty habit of arguing, without success, that such use is not infringement when Google gets sued).
Finally, there is a specific exemption for criminal misconduct. The difficulty with this concept is not in the application. As a criminal defense attorney in the 1980s I tried a broad range of criminal matters...from drug conspiracy and prison breaks to attempted murder. Don Morris, a senior attorney with our firm, was a criminal prosecutor in New York. My guess is that most of the Public Citizen lawyers and free speechers that are dishing out advice to the masses aren't qualified or experienced enough in criminal law, and don't understand or identify criminal copyright infringement, criminal tax fraud, extortion, larceny, and a host of other criminal actions that are often the basis for civil suits. And there seems to be an inability to understand the concepts behind aiding and abetting and conspiracy, and state and federal RICO (Racketeer Influenced and Corrupt Organizations Act) actions, that can get a party sued for participating in, or encouraging, such misconduct.
So, when business lawyers call me and tell me that they have been searching the web for an answer, it only takes a couple of minutes before they understand the proper analysis surrounding the landscape of Section 230. If the free speech extremists, many of whom rather deceptively appear online to be highly qualified and experienced lawyers, had a broader experience base and an ability to view issues objectively, netizens could rely upon their advice and try to self police and self regulate more effectively. Instead, though, it seems that the crazy opinions of the vocal few will continue to influence and encourage scofflaw misconduct online. And at Dozier Internet Law we'll continue to help clients on both sides of the issue navigate through this increasingly complex and controversial arena.
Ultimately, how will this all play out? And are netizens really taking this jibberish from the left wingers seriously? At what point will those placing their entire financial well-being on the off-base, biased, foolish, and often childish advice of these lawyer-commentators figure this out? They create controversy because it brings traffic, and traffic brings money. Are you comfortable with these left wingers leading you down the primrose path...putting at risk your reputation and the financial well-being of your family? Hanging you out to dry, because your case will garner them attention and money?
There isn't an objective liability assessment or risk analysis bone in these free speech extremists' bodies...because they aren't in the business of protecting you. They aren't your lawyers, they owe you no duty of care.
You won't hear them say... "[E]very situation is different, the analyses involved are fact sensitive, this is an evolving and complex area of law with contradictory legal decisions, there have been significant successes on both sides of your issue, and we will engage in your issue in a quality way and give you an objective opinion as to where you stand considering potential liabilities and risks so you can make a fully informed decision."
But for the purposes of full disclosure, this is what they should be saying to you:
"I was a _____ lawyer until a couple of years ago when we lost that battle and we couldn't raise funds, so I decided to get into the law of the Internet. I have never tried a jury case in my life, am anti-business, irrationally obsessed with expanding all notions of free speech, biased and prejudiced in my advice and guidance, I never consider both sides or invest the time to really understand the facts of a situation, and if you doubt the value of my advice I have a ring of similarly experienced and similarly minded online blogger friends who will tell you that I am correct on everything I say, do and believe. PS: Send money."