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Defamation laws haven't caught up with today's Internet

December 1, 2008
One of life's modern vanities is the ability to Google yourself and scroll through the resulting hits. What typically turns up is a pot luck of items ranging from on-point, to out-of-date, to the outright obscure.

The chances of an individual or organization being mentioned on the Web increase exponentially each day. Estimates peg the number of current Web sites at around 108 million.

Drill down, and that number skyrockets to nearly 30 billion individual Web pages. Today's blogosphere stands at around 70 million, with the number of blogs on the Web doubling every six to 12 months. And giving everyone their "15 megabytes of fame," there are 1.6 million new blog posts each day.

With this much information exchanged on the Web every day, the possibility for mischief is high, including the chances of false reports, defamatory statements and outright lies.

Exposure limited

What are the legal repercussions against Web sites that allow defamatory comments to be posted on them? Surprisingly to many, their exposure is significantly limited. Enacted by Congress in 1996, the Communications Decency Act was among the first federal acts meant to regulate content on the Internet. The CDA states that no provider or user of an "interactive computer service" shall be treated as the publisher or speaker of any information provided by a third party.

As applied by the courts since enactment, the CDA effectively creates an immunity to any defamation cause of action in either state or federal court, assuming the Web site has some interactive features. It is hard to think of a single current Web site that would not fall within that definition.

Of course, today's Web is drastically different from the Web as it existed in 1996. Then, AOL and the now-defunct CompuServe served as the primary gateways onto the Web (recall the avalanche of free-trial CDs that arrived in the mail). The level of commerce conducted on the Web was minimal, at best. Current stalwarts like Amazon were just getting on their feet, while popular sites like MySpace were still years away from being created.

Unlike in 1996, the Web is now integrated into most every aspect of daily life. With these changes in the Web's use and reliance should come changes in the Web's regulation.

Just as cutting-edge technology from 1996 is now an antiquated relic, the 12-year-old Internet legislation is obsolete. To effectively regulate the modern spectrum of Web sites, the CDA's policy of shielding practically all Web sites from liability for defamation should be re-examined to catch up with a decade of change.

'Live with it'

Take, for instance, the example of Juicy-Campus.com, a popular Web site that is marketed to college students around the country, including Indiana University. JuicyCampus.com appears to be one step above the graffiti-filled walls of your local tavern. Students are allowed to post gossip and rumors anonymously about fellow students and professors.

The site proudly advertises that it does not track its users, nor is it possible for others to discover users' identities. The site goes so far as to provide potential users with tips for covering their tracks, including IP-cloaking and removing cookies. In response to a frequently asked question on JuicyCampus.com, "What if I see a comment that just isn't true?," the site's developers essentially say, "Live with it."

On the other end of the spectrum are well-regarded, upright citizens of the Web who thrive on their user-feedback sections. These Web sites would include, for instance, Indianapolis-based Angie's List, which posts and aggregates members' reviews of various service providers, primarily targeting the home remodel demographic. On Angie's List, the service providers are given an opportunity to respond, and the members who post information can be easily identified.

The CDA's blanket immunity should give way to a more balanced, tempered approach in a world in which JuicyCampus and Angie's List co-exist. Assuming proper editorial and content oversight, legitimate Web-based businesses such as Angie's List should continue to be afforded greater protections from suit for postings made by their members.

On the other hand, the developers of JuicyCampus and similar Web sites essentially give free license to users to indiscriminately defame and spread gossip about a limitless group of victims. If this is the business model chosen, there should be no immunity.

One encouraging sign is that federal courts in the 7th Circuit (covering Indiana, Illinois and Wisconsin) have shown signs of splitting from other circuits around the country and ruling that the CDA's grant of immunity is much narrower than presently interpreted. This process will take time, though, and there is no guarantee that the United States Supreme Court would not side with the majority position, when and if the issue is ever presented.

So, for the time being, go ahead and Google yourself. Just be careful-there may be no remedy for any bad stuff you might find.

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Albaugh is an attorney with Baker & Daniels LLP, where he concentrates his practice in First Amendment and business litigation. Views expressed here are the writer's.
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