Why Sec 230 of the Communications Decency Act Needs Amending

Yesterday, the All Facebook blog published a story titled Family Sues Facebook Over Photos of Daughter’s Corpse. From the article (bold is mine):

A couple in New York is suing Facebook after a paramedic posted photos of their daughter’s dead body on the social networking site.

Martha and Ronald Wimmer’s daughter Caroline died two years ago. She was found in her apartment, strangled with her hair dryer, according to NBC New York.

Paramedic Mark Musarella posted photos of Caroline’s strangled body on Facebook. That got him fired from his job and stripped of his EMT license. And he agreed never again to work as an EMT as long as he didn’t get jail time. He also put in 200 hours of community service.

Even so, the Wimmers are also suing Musarella and his employer, Richmond University Medical Center, as well as Fire Commissioner Salvatore J. Cassano and the Fire Department of New York, in addition to Facebook.

But the Wimmers aren’t asking Facebook for money; they are asking the social media site to delete the photos of their daughter from its data servers. They also are asking for user details about who viewed ad downloaded the photos. Facebook has refused to comply with the Wimmers’ demands.

“We believe this suit is completely without merit and we will fight it vigorously,” Facebook spokesman Andrew Noyes told NBC.

 

When I mentioned the suite to Eric Goldman, a lawyer that writes extensively on the legal issues surrounding internet law noted:

Tragic story, but Facebook is clearly immunized under Section 230.

Sec 230 of the Communications Decency Act is the same law that immunizes the search engines if your business listing was hijacked by affiliate spammers and all profits from your business were being funneled to theives. It is the same law that immunizes the major review platforms from any liability if a libelous review is placed on line.

The Communications Decent Act of 1996 was created in a futile attempt to regulate pornography on the internet. Sec 230 of the act was:

.. not part of the original Senate legislation, but was added in conference with the House of Representatives, where it had been separately introduced.. as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. Unlike the more controversial anti-indecency provisions which were later ruled unconstitutional, this portion of the Act remains in force, and enhances free speech by making it unnecessary for ISPs and other service providers to unduly restrict customers’ actions for fear of being found legally liable for customers’ conduct.

It has also been argued that the law has provided a stable legal environment in which encouraged internet service providers (in the broad sense) to invest in a range of services, functionality and software without fear of being sued for use of their platforms by 3rd parties.

Those were and are important goals. In 1996, 2001 and maybe even 2006 they made all kinds of sense. In 2011 less so.

Sec 203 has been interpreted in the courts to provide internet companies blanket immunity not just only from the actions of 3rd parties on their sites. The courts have also determined that these internet providers are not required to pull down this material placed from their sites even after the material has been proven in a court of law to be illegal, slanderous or grossly in violation of community standards.

In Europe’s similarly intended Article 14 “providers are not responsible for the content they host as long as
(1) the acts in question are neutral intermediary acts of a mere technical, automatic and passive capacity;
(2) they are not informed of its illegal character, and
(3) they act promptly to remove or disable access to the material when informed of it.

It is hard to argue that Europe’s has less freedom of speech or that their more rational approach has created an environment unsuitable for internet investment. Given that we can now see that these minimal changes do not make the law ineffective, does it not make sense to change ours?

Should Facebook, Google, Bing or anyone else not have to be held to nominal standards of a decent society? Should our laws meant to create a civil society be used to create just the opposite?

Please consider leaving a comment as your input will help me (& everyone else) better understand and learn about local.
Why Sec 230 of the Communications Decency Act Needs Amending by

10 thoughts on “Why Sec 230 of the Communications Decency Act Needs Amending”

  1. It has to go. Totally UN American. It allows and encourages false negative reviews of businesses and allows sites like RipOff report to put a legit business onto skid row with false reports. Typically, all u need do is pay someone and you can put anyone out of business. How can u sue a fake user?

    r

  2. Mike,
    Your question is such a tough one. First, I find myself reacting in total horror to the story itself. I do not understand why on earth the paramedic would have done something so gruesome and insane and my heart aches for the poor family. Evil behavior. This leads to my very strong feeling that laws need to be tightened.

    But then I start to worry about the fact that I want laws tighter. It’s the age-old question of who gets to arbitrate what is decent? Who gets to decide? Such a question runs the gamut from separation of church and state to allowing racial hatred groups to parade up and down in front of the White House to banning books.

    Suddenly, I feel overwhelmed by the problem. Our society dictates that certain acts constitute criminal behavior (against the law). We’ve lived with such laws for so long that they seem like givens to all of us, I think, but it becomes less clear when we are dealing with things like speech, junk on the Internet, etc. I’m not totally sure how to think my way through this.

    Just last night, I was looking up old Sesame Street skits for fun and was completely disgusted to see that pornographers are including the name of this children’s show in their YouTube video titles that have absolutely nothing to do with Sesame Street. I’d like to see this stuff wiped off the face of the Earth, frankly, and never fail to be disturbed when encountering the ill wishes and thoughts of others. I guess we would need to fall back on democracy to take, in a sense, a national poll as to what is decent and what isn’t, and let our acts and laws reflect this.

    Sorry if I’m rambling. The story you’ve published and the question you’ve asked are both deserved of discussion. My heart feels very strongly about what would be ‘right’, in my opinion, in a case like this, but when faced with moral dilemmas, I find that including government in the subject muddies my thinking.

  3. Ok, so the review situation has boiled my blood to a point where I can’t stand it anymore, as I watch competitors cheat away with no consequence.

    Now I’m to the point of trying to create a solution, and I know this place is a great one to kick around ideas. How about this, Mike: Someone create a company that gets hired by local businesses to advise/scare they’re competitor companies that are posting fake reviews to stop doing so. Since fake reviews are a punishable offense, as we have seen in New York, why not take what information is given (there are many clues to identifying fake reviews) and address this with X company through a middleman. I think this company could do its job without harassing.

    I’d pay upwards of $1000 for my competitors to stop posting fake reviews/take them down, and I’m a small business.

    I know the ultimate solution lies with google and other review providers to turn down the juice that gives reviews so much weight with local search, or amend 230, but this seems like a legitimate attempt to stop these frauds now.

  4. @CB34:

    Your argument misses the point. Anyone can create a FAKE user acct and post bogus, defamatory reviews. Competitors already do this same idea w adwords by hiring overseas companies to click your daily bid budgets away.

    SEO companies are now basically calling businesses and blackmailing them, trying to sell them “reputation protection.” This online review thing is totally nefarious and shields evil doers. The only answer is to abide by the common law and tell congress to repeal this completely unconstitutional law that enable competitors and evil SEO companies to destroy each other with ZERO repercussions.

    We need to have the right to sue third party defamers, no matter who they are and where they are. The only identifiable party in 99 percent of this defamation are sites like Google, Yahoo!, Yelp, etc. Google should know better.

    A publicly traded company should not hide behind an UNJUST law. They should have a verification process, as well as an opt out process that allows businesses who dont want reviews on their businesses, without harming their search results.

    You cannot sue some guy in India hidden behind a network of proxies and servers.

  5. @Miriam

    Panzer brings up one of the issues with the law. However there is a second issue that I find even more pernicious.

    If a business manages to sue someone that left defamatory reviews unjustly and wins, Google is under no obligation even then to pull the reviews down.

    At some point the internet companies need to be held to the standard that society sets. Complete immunity AFTER the fact makes no sense to me.

    Again, proof that that a law so structured works is Europe.

  6. @Miriam. Right on. But that is the whole point of RESTORING legal rights unconstitutionally abrogated by congress, in the passage of this “law.”

    Under a normal scenario, you would sue all parties who republished the malicious defamation, and seek injunctive relief to have the bogus crap taken down.

    Online reviews can easily, and are already substantially interfering with small businesses already suffering.

  7. Mike & Panzermike,
    Thanks for the replies. I’m convinced that both of you are right on this and this just seems plain ridiculous:

    “If a business manages to sue someone that left defamatory reviews unjustly and wins, Google is under no obligation even then to pull the reviews down.”

    Thanks for helping me understand the issue.

  8. Please, if you are reading this, write to your congressional delegation and urge them to reform Section 230 to provide basic due process protections. Under the current law many websites encourage users to use proxies and other methods to hide their identities when posting. Additionally, as stated there is no legal remedy available even when it is proven the law has been broken or rights have been violated.

    Urge your congressional delegation to amend Section 230 to provide the same protections for individuals as is provided to copyright holders under the DMCA. That is that if a website is notified of content that is defamatory they must remove the material and notify the poster. If the poster can prove that the content is not defamatory it can go back up. The framework is already in place for websites to handle these issues.

    The whole idea of reviews is about money for the website anyway. They encourage people to post – even buying TV ads. They know that negative reviews will predominate but they do not care because the traffic the reviews generate means they can charge more for advertising on the site. Section 230 is all about protecting the website operators bottom line. Also, it seems that there may be interconnecting ownership of review websites and reputation management businesses — so that these companies are now selling services to cure a problem that they create.

    Please contact your congressional delegation often until this is addressed.

  9. That is one of the worst laws on the book that now has made many sites a cesspool for internet libel and defamation. There are times when the website is responsible such as when Craig’s List was knowingly allowing child sex trafficking ads on their website (Backpage still does). Sites like Ripoff Reports and the worst of the lot, Topix, continue to destroy many lives as well.

  10. I was one of Rupert Murdoch’s many victims. One of his MySpace.com users created web pages using my name as the title and my photo, my personal information, etc., combined with obscene sexual photos showing full on genitalia and sex acts with total nudity with intersperse insulting comments about me. This went on for four years and I was unable to keep or obtain employment and did not know why until I discovered this trash online that all my employers and potential employers had been seeing and I had no awareness of it at all until I had been badly damaged for years. I had no reason to even imagine that anyone would do this kind of thing to me; it never even occurred to me as I did nothing at all to invite such harms. Anyway, I have been in court fighting against Rupert Murdoch for over three years because I figured out that this was more than defamation ; it was identity theft and the distribution of pornography across state lines under the unauthorized use of my identity. These are federal RICO category crimes and I am now engaged in a federal lawsuit against Rupert Murdoch. He has ruined my life and as a result of the damage, my personal and professional reputation and my financial wellbeing have been thoroughly destroyed. I hold two doctoral degrees and have taught in public high schools for over two decades, but now I am left with nothing but poverty and serious emotional distress. I hope to hold that slimy Aussie to account for what he has done. By the way, he monetized the harmful pages with banner ads which generated profit for him as he ruined me. What a great country this is. I say this facetiously, of course. the way in which the courts have punished me for even filing the complaints is astonishing and has made me despise my own country. I mean REALLY despise it. If I get any decent recovery at all, I intend to leave this nation immediately and then renounce my U.S. citizenship.

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