The operator of a web site is not liable for allegedly defamatory
remarks posted to the site's forum by anonymous third parties,
despite some editing of remarks, according to a ruling issued by a
New Jersey appeals court on Monday.
The court found that Stephen Moldow, who operated community web
site "Eye on Emerson", was immune from liability under a provision
in the Communications Decency Act which grants immunity from suit
to those who provide material on the internet that was written by
others.
Section 230 of the Act says that "no provider or user of an
interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider."
This general grant of immunity is then supplemented by a
so-called "good Samaritan" provision that no provider or user of an
interactive computer service shall be held liable on account of
"any action voluntarily taken in good faith to restrict access to
or availability of material that the provider or user considers to
be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such material
is constitutionally protected."
Moldow set up his site in late 1999, providing details of local
government activity in the Emerson area. He was sued in August 2001
by town council members Vincent Donato and Gina Calogero after
derogatory messages were posted anonymously onto the site's
discussion board.
Donato and Calogero argued in court that Moldow was liable
because he had actively participated in the selective editing,
deletion and re-writing of some of the messages, according to court
papers. But the Appellate Division of New Jersey Superior Court, in
a ruling published on Monday, disagreed.
"In the context of traditional media, such as newspapers and
magazines, the publisher of defamatory statements might well be
exposed to liability for conduct such as that alleged against
Moldow," said Judge Joseph Lisa delivering the ruling on behalf of
the three-panel court. "In the context of cyberspace, however,
Congress has chosen a different course."
He said that the legislation gave "a broad immunity to providers
or users of interactive computer services".
As the provider of a web site, said the court, Moldow was both
the user and the provider of an interactive computer service and
the fact that "he allows users to post messages anonymously or that
he knows the identity of users of the web site are simply not
relevant to the terms of Congress' grant of immunity."
If any messages posted by Moldow personally were found to be
actionable, then he would be liable for the content of them, said
the Court. But no allegations had been made in connection with such
messages.
And Moldow could not be responsible, even partly, for the
creation or "development" of the third party messages.
"Development requires material substantive contribution to the
information that is ultimately published," said the Court.
"Deleting profanity, selectively deleting or allowing to remain
certain postings, and commenting favorably or unfavorably on some
postings, without changing the substance of the message authored by
another, does not constitute 'development' within the meaning of"
the Act.
According to reports, the web site is no longer operational and
both council members have resigned.
It is very unlikely that a UK court would come to the same
conclusion on the facts of this case. The relevant UK laws differ
significantly: a webmaster escapes liability if he does not monitor
the content that others are posting and has no knowledge of any
defamatory remarks; but as soon as he exercises editorial control,
he risks becoming liable for any defamation.
