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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  19 avoiding publisher liability, while simultaneously providing recourse to innocent victims like Jane Doe and her son. The Case for Immunity Contrary to the critics, a review of the legislative record suggests that the Zeran decision reflects Congressional intent. “When Congress adopted section 230,” Friedman and Buono (2000) note, “it did not intend to split the difference between Cubby and Stratton Oakmont, but rather sought to replace the then-current legal regime with a clear policy of OSP (online service provider) immunity relative to third-party content, regardless of whether the OSP was acting as a publisher or distributor of such third party content” (p. 662). While it might be argued that the Fourth Circuit decision in Zeran is too deferential to ISPs, the floor debate that led to the amendment that ultimately became Section 230 is far from definitive on this point (Cannon, 1996-1997, pp. 67-69; Finn, Lahey and Redle, 2000, pp. 358-366). Beyond the question of legislative intent, there are compelling reasons for broadly interpreting the immunity conferred in Section 230. Holding ISPs accountable as distributors would have a chilling effect upon the freedom of expression. As the Court of Appeals correctly noted in Zeran (1997), “If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement—from any party, concerning any message. Each notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information” (p. 333). Under such a scheme, anyone who was displeased with a Web site or a posting to a bulletin board could

Authors: Herbeck, Dale.
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19
avoiding publisher liability, while simultaneously providing recourse to innocent victims like
Jane Doe and her son.
The Case for Immunity
Contrary to the critics, a review of the legislative record suggests that the Zeran decision
reflects Congressional intent. “When Congress adopted section 230,” Friedman and Buono
(2000) note, “it did not intend to split the difference between Cubby and Stratton Oakmont, but
rather sought to replace the then-current legal regime with a clear policy of OSP (online service
provider) immunity relative to third-party content, regardless of whether the OSP was acting as a
publisher or distributor of such third party content” (p. 662). While it might be argued that the
Fourth Circuit decision in Zeran is too deferential to ISPs, the floor debate that led to the
amendment that ultimately became Section 230 is far from definitive on this point (Cannon,
1996-1997, pp. 67-69; Finn, Lahey and Redle, 2000, pp. 358-366).
Beyond the question of legislative intent, there are compelling reasons for broadly
interpreting the immunity conferred in Section 230. Holding ISPs accountable as distributors
would have a chilling effect upon the freedom of expression. As the Court of Appeals correctly
noted in Zeran (1997), “If computer service providers were subject to distributor liability, they
would face potential liability each time they receive notice of a potentially defamatory
statement—from any party, concerning any message. Each notification would require a careful
yet rapid investigation of the circumstances surrounding the posted information, a legal judgment
concerning the information’s defamatory character, and an on-the-spot editorial decision whether
to risk liability by allowing the continued publication of that information” (p. 333). Under such a
scheme, anyone who was displeased with a Web site or a posting to a bulletin board could


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