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.
.. 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?Why Sec 230 of the Communications Decency Act Needs Amending by Mike Blumenthal