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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  9 In 1996, Zeran brought suit “under the theory that distributors of information are liable for the distribution of material which they knew or should have known was of a defamatory character” (Zeran, 1997a, pp. 1128-1129). More specifically, Zeran argued that AOL was negligent in that it failed to immediately remove the defamatory postings, that AOL had not posted a retraction notifying subscribers that the postings were a hoax, and that AOL had failed to screen for future defamatory postings. AOL did not challenge Zeran’s allegation of distributor liability, arguing instead that Zeran’s claim was preempted by Section 230 of the Communications Decency Act. In dismissing Zeran’s suit, a federal district court agreed with AOL’s claim that ISPs were protected from state tort actions by the CDA. Since Zeran admitted that AOL was an interactive computer service as defined by the CDA, the case hinged on “whether a state cause of action for negligent distribution of defamatory material directly conflicts with the CDA’s prohibition against treating an Internet provider as a ‘publisher or speaker’” (p. 1133). To answer the question, the court needed to consider whether “distributor liability is a common law tort concept different from, and unrelated to, publisher liability” (p. 1122). Citing the Second Restatement of Torts, the court concluded that “distributor liability, or more precisely, liability for knowingly or negligently distributing defamatory material, is merely a species or type of liability for publishing defamatory material” (p. 1133). Since distributor liability is a subset of publisher liability, the court concluded, “Zeran’s attempt to impose distributor liability on AOL is, in effect, an attempt to have AOL treated as the publisher of the defamatory material. This treatment is contrary to Section 230(c)(1) of the CDA and, thus, Zeran’s claim for negligent distribution of the notice is preempted” (p. 1133). When Zeran appealed, the U.S. Circuit Court of Appeals for the Fourth Circuit upheld the district court. Like the lower court, the Court of Appeals found that “Section 230 precludes

Authors: Herbeck, Dale.
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9
In 1996, Zeran brought suit “under the theory that distributors of information are liable
for the distribution of material which they knew or should have known was of a defamatory
character” (Zeran, 1997a, pp. 1128-1129). More specifically, Zeran argued that AOL was
negligent in that it failed to immediately remove the defamatory postings, that AOL had not
posted a retraction notifying subscribers that the postings were a hoax, and that AOL had failed
to screen for future defamatory postings. AOL did not challenge Zeran’s allegation of distributor
liability, arguing instead that Zeran’s claim was preempted by Section 230 of the
Communications Decency Act.
In dismissing Zeran’s suit, a federal district court agreed with AOL’s claim that ISPs were
protected from state tort actions by the CDA. Since Zeran admitted that AOL was an interactive
computer service as defined by the CDA, the case hinged on “whether a state cause of action for
negligent distribution of defamatory material directly conflicts with the CDA’s prohibition
against treating an Internet provider as a ‘publisher or speaker’” (p. 1133). To answer the
question, the court needed to consider whether “distributor liability is a common law tort concept
different from, and unrelated to, publisher liability” (p. 1122). Citing the Second Restatement of
Torts, the court concluded that “distributor liability, or more precisely, liability for knowingly or
negligently distributing defamatory material, is merely a species or type of liability for publishing
defamatory material” (p. 1133). Since distributor liability is a subset of publisher liability, the
court concluded, “Zeran’s attempt to impose distributor liability on AOL is, in effect, an attempt
to have AOL treated as the publisher of the defamatory material. This treatment is contrary to
Section 230(c)(1) of the CDA and, thus, Zeran’s claim for negligent distribution of the notice is
preempted” (p. 1133).
When Zeran appealed, the U.S. Circuit Court of Appeals for the Fourth Circuit upheld the
district court. Like the lower court, the Court of Appeals found that “Section 230 precludes


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