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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  20 formally notify the relevant service provider and claim that the message was defamatory. Given the volume of speech and the possibility for being held responsible for not responding, most ISPs would likely suppress any controversial or otherwise objectionable speech. “Thus,” the Court of Appeals concluded, “like strict liability, liability upon notice has a chilling effect on the freedom of Internet speech” (p. 333). In an effort to downplay this concern, critics of Zeran have attempted to minimize or even deny the significance of this chilling effect. While some (Sheridan, 1997) have suggested that ISPs have an inherent financial incentive to protect speech, others (Butler, 1999/2000, pp. 262- 265; Hallett, 2001; and Holmes, 2001, pp. 244-245) have suggested that it might be possible to protect speech by creating formal notice and takedown provisions modeled after the procedure for dealing with copyright infringement set out in the Digital Millennium Copyright Act (DMCA). Upon closer examination, however, it is apparent that these strategies for minimizing the chilling effect are flawed. Neither incentives nor formal legal schemes afford as much protection to user’s speech rights as the immunity conferred on ISPs by the Zeran decision. Although they discount its importance, even the critics of Zeran must admit that “anything but absolute immunity inevitably results in the chilling of some speech” (Sheridan, 1997, p. 178). Consider, for example, the financial incentives argument. “News travels fast over interactive computer services,” Sheridan (1997) argues, “and a service that removes members’ postings without any investigation is likely to get a bad reputation in a community whose first value is the free flow of information” (pp. 176-177). Even if consumers do cherish the free flow of information, however, there is little reason to believe that they will invest the time required to gather the necessary information required to make informed decisions about the behavior of their ISP. Even if some subscribers did switch ISPs, the threat of a single defamation judgment would more than offset the loss of hundreds or even thousands of subscribers. Moreover, this entire line

Authors: Herbeck, Dale.
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formally notify the relevant service provider and claim that the message was defamatory. Given
the volume of speech and the possibility for being held responsible for not responding, most ISPs
would likely suppress any controversial or otherwise objectionable speech. “Thus,” the Court of
Appeals concluded, “like strict liability, liability upon notice has a chilling effect on the freedom
of Internet speech” (p. 333).
In an effort to downplay this concern, critics of Zeran have attempted to minimize or even
deny the significance of this chilling effect. While some (Sheridan, 1997) have suggested that
ISPs have an inherent financial incentive to protect speech, others (Butler, 1999/2000, pp. 262-
265; Hallett, 2001; and Holmes, 2001, pp. 244-245) have suggested that it might be possible to
protect speech by creating formal notice and takedown provisions modeled after the procedure
for dealing with copyright infringement set out in the Digital Millennium Copyright Act
(DMCA). Upon closer examination, however, it is apparent that these strategies for minimizing
the chilling effect are flawed. Neither incentives nor formal legal schemes afford as much
protection to user’s speech rights as the immunity conferred on ISPs by the Zeran decision.
Although they discount its importance, even the critics of Zeran must admit that “anything but
absolute immunity inevitably results in the chilling of some speech” (Sheridan, 1997, p. 178).
Consider, for example, the financial incentives argument. “News travels fast over
interactive computer services,” Sheridan (1997) argues, “and a service that removes members’
postings without any investigation is likely to get a bad reputation in a community whose first
value is the free flow of information” (pp. 176-177). Even if consumers do cherish the free flow
of information, however, there is little reason to believe that they will invest the time required to
gather the necessary information required to make informed decisions about the behavior of their
ISP. Even if some subscribers did switch ISPs, the threat of a single defamation judgment would
more than offset the loss of hundreds or even thousands of subscribers. Moreover, this entire line


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