Zeran is one of the most important texts in all of Internet law. It rewards careful reading. State the post-Zeran rule of Section 230 in your own words, in one sentence. Explain the distinction between “publisher” and “distributor” liability at common law. Then explain Zeran’s holding in terms of these categories. Now test yourself: After Zeran, if you find a defamatory post about you on AOL, can you sue AOL? What if you pick up the phone and call AOL and tell them, “There’s a defamatory post about me!” Your answers should be “no” and “no.” Explain why.
Under Section 230, Interactive computer services are immune from liability for posts made by third parties.
The distinction between publisher and distributor liability at common law is that the distributor has to have knowledge of the defamatory statements and the subsequent failure to remove the statement then creates liability whereas a publisher is liable for the negligent communication of a defamatory statement. However, in Zeran the Court states that distributors are often times publishers.
If I found a defamatory post on AOL, I could not sue AOL because that was expressly the issue in Zeran and the court held that AOL was not liable, even if I picked up the phone and called AOL to tell them. This is because Section 230 provides an immunity. In Zeran, the Court found that AOL is legally a publisher and thus falls under the protection of the Act. Zeran attempts to hold AOL liable as a distributor, rather than a publisher. However, the court finds that would be bad for public policy reasons. If an internet service provider were held liable as a distributor, it would face liability every time it received notice of defamation on the Internet. This would be unworkable because, unlike a traditional print publisher, “the sheer number of postings on interactive computer services would create an impossible burden in the Internet context.” It would also chill speech.
Leave a Reply