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When Is an ISP Liable for the Acts of Its Subscribers?
If an ISP does not obey the DMCA provisions -- for example, by failing to designate an agent or by neglecting to immediately remove infringing copy once notified -- a copyright owner has the right to seek financial damages against the ISP as a contributory or vicarious copyright infringer.
Defamation and Other Claims
Defamation, also known as libel, is the publication of an untrue statement that causes an injury to the reputation of a person or business. For example, Matt Drudge, publisher of the gossip column, the Drudge Report, stated that Sidney Blumenthal, a confidant of President Clinton, had a history of spousal abuse. The comments were posted at Drudge's website and at America Online, who paid Drudge $3,000 per month for the right to post the column. After receiving a letter from Blumenthal, Drudge and America Online both retracted the statements and issued corrections. Blumenthal and his wife sued Drudge and America Online for defamation. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
Communications Decency Act
Had America Online been a print newspaper or magazine, it might have owed damages for the injuries caused by Drudge's false statement. Instead, a court dismissed AOL from the lawsuit under the provisions of Section 230 of the Communications Decency Act (CDA), which states that no ISP "shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, the CDA shields ISPs from liability for statements or content from its users. This is true even where -- as in the Drudge case -- the ISP paid the writer for use of the statements.
The CDA has proven to be an all-purpose shield for ISP liability. AOL has used it several times to deflect lawsuits. In one case, an individual posted an advertisement on America Online shortly after the bombing of the federal building in Oklahoma City. The ad offered t-shirts and merchandise with offensive slogans that glorified the bombing and affixed the name and phone number of a California man, Kenneth Zeran, who knew nothing about the offer. Shortly after the ad was posted, Mr. Zeran received numerous angry phone calls from persons who saw the ad. Zeran complained to AOL, who removed the ad. However, an individual using a different screen name quickly reposted the ad. Zeran sued America Online for negligence, claiming the service provider had a duty to prevent the reposting of the bogus messages. A court ruled that under the CDA, AOL was exempt from the lawsuit. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
In a case involving obscenity, an AOL user described and solicited the sale of child pornography videotapes in an online chat room. Another user, offended by the child pornography solicitations, sued AOL, claiming that the ISP had a duty to make sure that the service did not facilitate the distribution of child pornography. A court ruled that AOL was exempt from the claim under the CDA. Jane Doe v. America Online, Inc., 718 So.2d 385 (1998), approved 783 So.2d 1010 (2001).
International Liability
Other nations do not share the U.S. approach of absolving ISPs from liability for the acts of their subscribers. In Britain, an ISP was found liable for a subscriber's defamatory statements. Britain's High Court ruled in 1999 that an ISP could not claim it was an innocent disseminator of the defamatory statements. Instead, the court viewed the ISP as being similar to a print publisher. ISPs are expected to appeal to British lawmakers for legislation limiting liability for statements by users.
In Germany, a court ruled in April 2000 that America Online was liable for a user's posting of unauthorized music.
Conclusion
Thanks to two federal laws, the CDA and the DMCA, American ISPs currently have a Teflon coating. Responsible ISPs who meet the provisions of these two laws can repel lawsuits based upon claims of copyright infringement, defamation, or related claims.
Copyright 2007 Nolo
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If an ISP does not obey the DMCA provisions -- for example, by failing to designate an agent or by neglecting to immediately remove infringing copy once notified -- a copyright owner has the right to seek financial damages against the ISP as a contributory or vicarious copyright infringer.
Defamation and Other Claims
Defamation, also known as libel, is the publication of an untrue statement that causes an injury to the reputation of a person or business. For example, Matt Drudge, publisher of the gossip column, the Drudge Report, stated that Sidney Blumenthal, a confidant of President Clinton, had a history of spousal abuse. The comments were posted at Drudge's website and at America Online, who paid Drudge $3,000 per month for the right to post the column. After receiving a letter from Blumenthal, Drudge and America Online both retracted the statements and issued corrections. Blumenthal and his wife sued Drudge and America Online for defamation. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
Communications Decency Act
Had America Online been a print newspaper or magazine, it might have owed damages for the injuries caused by Drudge's false statement. Instead, a court dismissed AOL from the lawsuit under the provisions of Section 230 of the Communications Decency Act (CDA), which states that no ISP "shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, the CDA shields ISPs from liability for statements or content from its users. This is true even where -- as in the Drudge case -- the ISP paid the writer for use of the statements.
The CDA has proven to be an all-purpose shield for ISP liability. AOL has used it several times to deflect lawsuits. In one case, an individual posted an advertisement on America Online shortly after the bombing of the federal building in Oklahoma City. The ad offered t-shirts and merchandise with offensive slogans that glorified the bombing and affixed the name and phone number of a California man, Kenneth Zeran, who knew nothing about the offer. Shortly after the ad was posted, Mr. Zeran received numerous angry phone calls from persons who saw the ad. Zeran complained to AOL, who removed the ad. However, an individual using a different screen name quickly reposted the ad. Zeran sued America Online for negligence, claiming the service provider had a duty to prevent the reposting of the bogus messages. A court ruled that under the CDA, AOL was exempt from the lawsuit. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
In a case involving obscenity, an AOL user described and solicited the sale of child pornography videotapes in an online chat room. Another user, offended by the child pornography solicitations, sued AOL, claiming that the ISP had a duty to make sure that the service did not facilitate the distribution of child pornography. A court ruled that AOL was exempt from the claim under the CDA. Jane Doe v. America Online, Inc., 718 So.2d 385 (1998), approved 783 So.2d 1010 (2001).
International Liability
Other nations do not share the U.S. approach of absolving ISPs from liability for the acts of their subscribers. In Britain, an ISP was found liable for a subscriber's defamatory statements. Britain's High Court ruled in 1999 that an ISP could not claim it was an innocent disseminator of the defamatory statements. Instead, the court viewed the ISP as being similar to a print publisher. ISPs are expected to appeal to British lawmakers for legislation limiting liability for statements by users.
In Germany, a court ruled in April 2000 that America Online was liable for a user's posting of unauthorized music.
Conclusion
Thanks to two federal laws, the CDA and the DMCA, American ISPs currently have a Teflon coating. Responsible ISPs who meet the provisions of these two laws can repel lawsuits based upon claims of copyright infringement, defamation, or related claims.
FAQs
- May I write whatever I like on my site?
- What can I do if I don't get what I ordered?
- Are there any other online scams I should watch out for?
- How do federal antiterrorism laws affect my Internet privacy?
- As for gambling, don't those websites check to make sure the gambler is of age?
Small Business Center Forms
Cost-effective legal forms to manage your small business.| Featured Attorneys | |
|
Dynamic Advocates providing optimum service in the most cost-effective manner.
|
(818) 243-5200
|
|
|
(562) 435-1426
|
|
Business and Corporate Law. Reasonable Rates. The Next Best Thing to Having Your Own Corporate Counsel. Call Now,
|
(310) 203-2249
|
Form a corporation or LLC quickly and easily. From LegalZoom, the #1 legal document service.
LLCs, Corporations, Corporate Dissolutions, Aged Shelf Corporations. We will beat any competitor's price on Registered Agent or Incorporation services!
Legal Ace.com has the turn key online system to make starting a corporation easy and affordable.
- Order LLCs or Corporation, Registered Agent, Trademark, or Dissolution Service or buy Corporate Kits & Seals. One stop shopping!