Cyber-bullying bill may threaten anonymous speech in New York

By Alice Cheng

In an attempt to combat cyber-bullying, a bill entitled the Internet Protection Act has been proposed in New York, requiring New York-based websites to “remove any comments posted on his or her website by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post.” The bill would allow those who are bullied or defamed online to take action to remove material. However, the bill only applies to anonymous comments. It would also allow business owners the right question negative online service and product reviews.

Although this statute was presumably created with good intentions, it also comes with serious First Amendment and privacy concerns. Website administrators would have the right to request that the anonymous users attach their names to the post, and must also verify the accuracy of their IP address, legal name, and home address.  This appears to clash with the conceptions most have regarding the rights to online privacy and anonymous speech.

The right to anonymous Internet speech, while not absolute, is nevertheless protected by the First Amendment. Protection is extended so long as the speaker is not involved in tortious or criminal conduct. Additionally, Section 230 of the Communications Decency Act provides immunity for Internet Service Providers (read: websites, blogs, listservs, forums, etc.) who publish information provided by others, so long as they comply with the Digital Millennium Copyright Act of 1998 (“DMCA”) and take down content that infringes the intellectual property rights of others.

Privacy and the Communications Decency Act

Privacy and the Communications Decency ActThe Communications Decency Act Provides Immunity For Third Party Submitted Content

We often get questions from both clients and journalists (e.g., here, and here) regarding liability for posting content on the internet, most of it centering around the same basic premise: “Why can Company X post this content on their website? How is that legal? Isn’t that an invasion of privacy?”

In most cases, the answer can be found in Section 230 of the Communications Decency Act of 1996, 47 U.S.C. § 230 (“CDA”). The act provides immunity for Internet Service Providers (read: websites, blogs, listservs, forums, etc.) who publish information provided by others, so long as they comply with the Digital Millennium Copyright Act of 1998 (“DMCA”) and take down content that infringes the intellectual property rights of others. In order to understand the CDA and DMCA, it is helpful to understand how each came about.

The United States has historically favored free speech, with certain limitations. Under the law, a writer or publisher of harmful information is treated differently than a distributor of that information. The theory behind this distinction is that the speaker and publisher have the knowledge of and editorial control over the content, whereas a distributor might not be aware of the content, much less whether it is harmful. Thus, if a writer publishes defamatory content in a book, both the writer and the publisher can be held liable, whereas a library or bookstore that distributed the book cannot.

Initially, courts found a distinction in liability based on whether the website was moderated. An unmoderated/unmonitored website was considered a distributor of information, rather than a publisher, because it did not review the contents of its message boards. Conversely, courts found a moderated/monitored website to be a publisher, concluding that the exercise of editorial control over content made it more like a publisher than a distributor – and thus the website was liable for anything that appeared on the site. Unsurprisingly, this created strong disincentives to monitoring or moderating websites, as doing so increased potential liability.

Given the sheer amount of information communicated online, the potential for liability based on third-party content (i.e. user comments on a blog, website or web bulletin board) threatened the viability of service providers and free speech over the internet.

Congress specifically wanted to remove these disincentives to self-moderation by websites and responded by passing the CDA. The CDA immunizes, with limited exceptions, providers and users of “interactive computer services” from publisher’s liability, so long as the information is provided by a third party (interactive computer service is defined broadly, and covers blogs). This immunity does not cover intellectual property claims or criminal liability, and of course the original creator of the content is not immune. That means a blogger or commentator is responsible for his/her own comments, though not for the submitted content of others (even if it violates a third-party’s privacy, or is defamatory, etc). Generally, the CDA will cover a website that hosts third-party content, and exercises editorial functions, such as deciding whether to publish, remove or edit material does not affect that immunity unless those actions materially alter the content (e.g.. changing “Aaron is not a scumbag” to “Aaron is a scumbag” would be a material alteration, whereas cropping a photo or fixing typos would not).

Accordingly, websites that post only user submitted content (even if the website encourages or pays third parties to create or submit content) are protected under the CDA, and immune from liability, with two major exceptions. The CDA does not immunize against the posting of criminally illegal content (such as underage pornography), and it does not immunize against the posting of another’s intellectual property without permission. Tasked with balancing the need to protect intellectual property rights online, as well as the various challenges faced by websites that lead to the CDA, Congress implemented the DMCA. The DMCA creates a safe harbor against copyright liability for websites, so long as block access to allegedly infringing material upon receipt of a notification from a copyright holder claiming infringement.

Ultimately, protecting yourself from liability under the CDA and DMCA or protecting your intellectual property rights online can be tricky. If you have any questions, feel free to contact us.