• OnLine Defamation - Who Can Be Held Liable?
  • June 5, 2009 | Author: Kourtney A. Mulcahy
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • A driving idea behind the World Wide Web has been that free and unfettered discussions are to be preferred, with practically no regulation or oversight. Because the more traditional forms of media, such as print and broadcast, are relatively expensive, most individuals are unable to invest the large sums needed to communicate through one of these means. However, as it is quite easy and inexpensive to communicate over the internet, circulation of online defamatory statements that can be instantly communicated to a large number of internet users is relatively simple.

    The following question therefore arises: Once defamatory statements are found online, what is the defamed party’s recourse, and who should be held liable for such harmful comments? In most instances, the natural instinct is to sue the speaker of the comments and the internet service provider (ISP) that hosts the site on which the defamatory speech appears. However, any lawsuit against an ISP will likely be met with a motion to dismiss based on Section 230 of the Communications Decency Act. Under Section 230, most ISPs are immune from liability for publishing false or defamatory material so long as the information was provided by another party. As a result, ISPs and internet publishers are treated differently from corresponding publishers in print, television and radio. Additionally, ISPs and internet publishers are not liable for any action they voluntarily take to restrict access to objectionable content.

    Section 230 is important because it provides immunity to online service providers that would otherwise be held liable for defamatory comments posted by third parties. However, this immunity is not afforded to ISPs or website operators that create the defamatory comments. Hinshaw’s intellectual property group attorneys can provide assistance in determining if an online service provider is the “publisher” of speech and therefore subject to liability under Section 230.