Court of Florida
JANE DOE, mother and legal guardian
of JOHN DOE, a minor,
AMERICA ONLINE, INC.,
[March 8, 2001]
We have for review Doe v. America Online,
Inc., 718 So. 2d 385 (Fla. 4th DCA 1998), in which the Fourth District
Court of Appeal certified the following questions to be of great public
Whether section 230 of the Communications Decency Act [CDA] applies
to complaints filed after its effective date where the complaint alleges a
cause of action based upon acts occurring prior to its effective date?
If the answer [to question 1] is in the affirmative, whether section
230 of the Communications Decency Act preempts Florida law?
Whether a computer service
provider with notice of a defamatory third party posting is entitled to
immunity under section 230 of the Communications Decency Act?
So.2d at 390. We have
jurisdiction. Art. V, §
3(b)(4), Fla. Const.
AND PROCEDURAL HISTORY
Doe filed a complaint in 1997 against Richard
Lee Russell and America Online (AOL), an Internet service provider (ISP), to
recover for alleged emotional injuries suffered by her son, John Doe.
Doe claimed that in 1994 Russell lured John Doe, who was then eleven
years old, and two other minor males to engage in sexual activity with each
other and with Russell. She
asserted that Russell photographed and videotaped these acts and used AOL's
"chat rooms" to market the photographs and videotapes and to sell
a videotape. Doe did not allege that Russell transmitted photographs or images of
her son via the AOL service. In
her six-count complaint, Doe claimed that AOL violated criminal statutes,
and section 847.0135(2), Florida Statutes (1993).
She alleged that AOL was negligent per se in violating section
847.0135, Florida Statutes, by allowing Russell to distribute an
advertisement offering "a visual depiction of sexual conduct involving
[John Doe]" and by allowing Russell to sell or arrange to sell child
pornography, thus aiding in the sale and distribution of child pornography,
including obscene images of John Doe. Doe
asserted a separate claim for negligence based on the allegation that AOL
knew or should have known that Russell and others like him used the service
to market and distribute child pornography; that it should have used
reasonable care in its operation; that it breached its duty; and that the
damages to John Doe were reasonably foreseeable as a result of AOL's breach.
Doe further claimed that complaints had been communicated to AOL as
to Russell's transmitting obscene and unlawful photographs or images and
that although AOL reserved the right to terminate without notice the service
of any member who did not abide by its “Terms of Service and Rules of the
Road,” AOL neither warned Russell to stop nor suspended his service.
Two of the counts in Doe's complaint were directed at Russell.
AOL moved to dismiss Doe's complaint and
argued, inter alia, that Doe's claims were barred by 47 U.S.C. § 230 (Supp.
in that section 230 prohibits civil actions that treat an interactive
computer service as the "publisher or speaker" of messages
transmitted over its service by third parties.
The trial court granted AOL's motion to dismiss with prejudice,
finding that the immunity Congress provided for interactive computer
services in section 230 applied to Doe's claims.
The Fourth District Court of Appeal affirmed and held that the trial
court's conclusion was consistent with Zeran v. America Online, Inc.,
129 F.3d 327 (4th Cir. 1997), in which the federal circuit court held that
"Congress' desire [in enacting 47 U.S.C. § 230] to promote unfettered
speech must supersede conflicting common law causes of action."
Id. at 334. The
Fourth District certified the questions of great public importance to this
AND THIRD CERTIFIED QUESTIONS
The certified questions in this case focus
upon the application of 47 U.S.C. § 230 to Florida tort actions that are
based upon alleged "distributor" liability of ISPs.
We first address the Fourth District’s second and third certified
questions and rephrase them into this combined question:
section 230 preempts Florida law as to causes of action based in negligence
against an Internet Service Provider (ISP) as a distributor of information
allegedly in violation of Florida criminal statutes prohibiting the
distribution of obscene literature and computer pornography?
the purpose of answering the certified question, but without deciding, we
accept that the complaint in this case states a cause of action under
for liability in negligence against AOL as a distributor of information.
We answer the rephrased certified question in the affirmative and
find that section 230 does preempt Florida law as to such a cause of action
based upon alleged negligence. We find persuasive the reasoning of the United States District Court in
Zeran v. America Online, Inc., 958 F. Supp. 1124, 1131-37 (E.D. Va.
1997), and the Fourth Circuit in Zeran, 129 F.3d at 331-32.
The importance of this certified question is
obvious in light of the current explosive growth in worldwide use of the
Internet. The fundamental issue
here is whether companies that provide access to the Internet are subject to
common-law civil tort causes of action based upon the laws of each of the
fifty states or whether Congress has acted to make ISPs immune from such
common-law civil actions.
In reaching our conclusion, we find
instructive the analysis of the congressional adoption of section 230 that
was provided in the Zeran decisions and in commentaries concerning
the Zeran decisions.
These sources indicate that two reported judicial decisions from
courts in the State of New York were significant in congressional passage of
47 U.S.C. § 230, the Communications Decency Act (CDA), and thus provide
assistance in understanding the intent of the Act.
The cases are Cubby, Inc. v. CompuServe, Inc., 776 F. Supp.
135 (S.D.N.Y. 1991), and Stratton Oakmont, Inc. v. Prodigy Services Co.,
23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995).
In Cubby, the federal district court held in a defamation
action that CompuServe, a service provider that offered its subscribers
access to an electronic library of news publications, was a mere distributor
of information and could not be held liable for libelous statements made in
news publications without a showing of actual knowledge.
See 776 F. Supp. at 140-41.
Subsequent to the federal Cubby
decision, a New York state court decided Stratton Oakmont and
concluded that an ISP could be held liable as a publisher of defamatory
statements if the ISP retained editorial control over the postings
contained on its site. See
23 Media L. Rep. at 1798. According
to one commentator, this created a paradox in that those ISPs who tried to
control what was placed on the Internet so as to limit access “to provide
decent, family-oriented content [would be] subject to defamation lawsuits
and liability on account of their efforts, while [ISPs] who made no efforts
to control content would be free of liability.”
In 1996, Congress enacted 47 U.S.C. § 230,
which was adopted as Title V of the Telecommunications Act of 1996, Pub. L.
104-104, 110 Stat. 56 (1996) (codified in scattered sections of 15 and 47
U.S.C.). See Reno v.
ACLU, 521 U.S. 844, 859 n.24 (1997).
The Congressional Conference Report on section 230 specifically
section provides “Good Samaritan” protections from civil liability for
providers or users of an interactive computer service for actions to
restrict or enable restriction of access to objectionable online material .
. . . [O]ne of the specific
purposes of [section 230] is to overrule Stratton-Oakmont v. Prodigy
and any other similar decisions which have treated such providers and users
as Publishers or speakers of content that is not their own because they have
restricted access to objectionable material.
supra note 7, at 795 (quoting S. Conf. Rep. No. 104-230, at 435
In Zeran, the Fourth Circuit described
this history of section 230:
Another important purpose of § 230 was to
encourage service providers to self‑regulate the dissemination of
offensive material over their services.
In this respect, § 230 responded to a New York state court decision,
Stratton Oakmont, Inc. v. Prodigy Servs. Co.
There, the plaintiffs sued Prodigy‑‑an interactive
computer service like AOL–for defamatory comments made by an unidentified
party on one of Prodigy's bulletin boards.
The court held Prodigy to the strict liability standard normally
applied to original publishers of defamatory statements, rejecting Prodigy's
claims that it should be held only to the lower "knowledge"
standard usually reserved for distributors.
The court reasoned that Prodigy acted more like an original publisher
than a distributor both because it advertised its practice of controlling
content on its service and because it actively screened and edited messages
posted on its bulletin boards.
Congress enacted § 230 to remove the
disincentives to selfregulation created by the Stratton Oakmont
decision. Under that court's
holding, computer service providers who regulated the dissemination of
offensive material on their services risked subjecting themselves to
liability, because such regulation cast the service provider in the role of
a publisher. Fearing that the
specter of liability would therefore deter service providers from blocking
and screening offensive material, Congress enacted § 230's broad immunity
“to remove disincentives for the development and utilization of blocking
and filtering technologies that empower parents to restrict their children's
access to objectionable or inappropriate online material.”
§ 47 U.S.C. § 230(b)(4). In
line with this purpose, § 230 forbids the imposition of publisher liability
on a service provider for the exercise of its editorial and
129 F.3d at 331 (citation omitted).
Using this history as a basis for our reading
of section 230, we turn to the issue of preemption of Florida law.
The reasoning of the United States District Court in Zeran is
incisive and directly on point on this issue:
2. Conflict with the Language of the CDA
Preemption is also required where state law
conflicts with the express language of a federal statute.
In this case, Zeran seeks to hold AOL liable for its alleged
negligence in allowing the bogus notices to remain and reappear after
learning of their fraudulent nature from Zeran. This theory of liability derives chiefly from Cubby, a case
decided over four years before the passage
of the CDA. In Cubby,
the district court concluded that the defendant interactive computer
service, CompuServe, was a distributor for the purposes of defamation
liability, and thus was liable only if it "knew or had reason to know
of the alleged defamatory . . . statements."
This "reason to know" standard is consistent with the
standard of liability for entities such as news vendors, book stores, and
libraries who, while not charged with a duty to review the materials they
distribute, are liable if they distribute materials they know or have reason
to know contain defamatory statements.
Thus, Zeran contends that on learning of the fake notice on the AOL
bulletin board advertising the tasteless T‑shirts, AOL had a duty to
take reasonable steps to prevent the distribution of this posting.
Zeran further contends that the scope of this reasonable duty, and
whether AOL complied with it, are questions for a jury.
AOL responds by contending that a state cause
of action for distributor liability is preempted because it directly
conflicts with the language of § 230 of the CDA. Specifically, AOL points to § 230(c)(1), which states that
provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
does not contest that AOL is an interactive computer service as defined by
the CDA and it is clear that AOL meets the statutory definition of such a
service. Nor does Zeran claim
that the bogus notices were anything but “information provided by another
information content provider.” Thus,
the preemption issue reduces to the question 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." Put
another way, the question is whether imposing common law distributor
liability on AOL amounts to treating it as a publisher or speaker.
If so, the state claim is preempted.
The key to answering this question lies in
understanding the true nature of so‑called distributor liability and
its relationship to publisher liability.
At the heart of Zeran's argument is the premise that distributor
liability is a common law tort concept different from, and unrelated to,
publisher liability. This is not so; 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. This relationship is apparent from the Restatement (Second) of Tort §
577 definition of “publication” of defamatory material, which states,
Publication of defamatory matter is its communication intentionally or by a
negligent act to one other than the person defamed.
One who intentionally and unreasonably fails to remove defamatory matter
that he knows to be exhibited on land or chattels in his possession or under
his control is subject to liability for its continued publication.
a publisher is not merely one who intentionally communicates defamatory
information. Instead, the law
also treats as a publisher or speaker one who fails to take reasonable steps
to remove defamatory statements from property under her control.
. . . .
3. Conflict with the Purposes and Objectives
of the CDA
An alternative basis for preemption exists if
subjecting AOL to state law distributor liability would stand "as an
obstacle to the accomplishment of the full purposes and objectives of
Congress" in passing § 230 of the CDA.
Section 230 itself provides some insight into Congress' purposes and
objectives in passing that provision, stating, in part, that
is the policy of the United States:
. . .
to encourage the development of technologies which maximize user control
over what information is received by individuals, families, and schools who
use the Internet and other interactive computer services; [and]
to remove disincentives for the development and utilization of blocking and
filtering technologies that empower parents to restrict their children's
access to objectionable or inappropriate online material . . . .
U.S.C.§ 230(b). The scant
legislative history reflects that the "disincentive" Congress
specifically had in mind was liability of the sort described in Stratton
Oakmont. There, Prodigy, an
interactive computer service provider, was held to have published the
defamatory statements of a third party in part because Prodigy had
voluntarily engaged in some content screening and editing and therefore knew
or should have known of the statements.
Congress, concerned that such rulings would induce interactive
computer services to refrain from editing or blocking content, chose to
grant immunity to interactive computer service providers from suits arising
from efforts by those providers to screen or block content.
Thus, Congress' clear objective in passing § 230 of the CDA was to
encourage the development of technologies, procedures and techniques by
which objectionable material could be blocked or deleted either by the
interactive computer service provider itself or by the families and schools
receiving information via the Internet.
If this objective is frustrated by the imposition of distributor
liability on Internet providers, then preemption is warranted.
Closely examined, distributor liability has just this effect.
958 F. Supp. at 1132-35 (citations and footnotes omitted) (emphasis added).
This view was confirmed by the analysis of
the Fourth Circuit Court of Appeal in Zeran:
Because of the difference between these two
forms of liability, Zeran contends that the term "distributor"
carries a legally distinct meaning from the term "publisher."
Accordingly, he asserts that Congress' use of only the term
"publisher" in § 230 indicates a purpose to immunize service
providers only from publisher liability. He argues that distributors are left unprotected by § 230 and,
therefore, his suit should be permitted to proceed against AOL.
We disagree. Assuming arguendo that Zeran has satisfied the requirements for
imposition of distributor liability, this theory of liability is merely a
subset, or a species, of publisher liability, and is therefore also
foreclosed by § 230.
The terms "publisher" and
"distributor" derive their legal significance from the context of
defamation law. Although Zeran
attempts to artfully plead his claims as ones of negligence, they are
indistinguishable from a garden variety defamation action.
Because the publication of a statement is a necessary element in a
defamation action, only one who publishes can be subject to this form of
tort liability. Restatement
(Second) of Torts § 558(b) (1977); Keeton et al., supra, § 113, at
802. Publication does not only
describe the choice by an author to include certain information. In addition, both the negligent communication of a defamatory
statement and the failure to remove such a statement when first communicated
by another party‑‑each alleged by Zeran here under a negligence
Restatement (Second) of Torts § 577;
see also Tacket v. General Motors Corp., 836 F.2d 1042,
1046‑47 (7th Cir.1987). In
fact, every repetition of a defamatory statement is considered a
publication. Keeton et al.,
supra, § 113, at 799.
In this case, AOL is legally considered to be
a publisher. "[E]very one
who takes part in the publication . . . is charged with publication."
distributors are considered to be publishers for purposes of defamation law:
who are in the business of making their facilities available to disseminate
the writings composed, the speeches made, and the information gathered by
others may also be regarded as participating to such an extent in making the
books, newspapers, magazines, and information available to others as to be
regarded as publishers. They
are intentionally making the contents available to others, sometimes without
knowing all of the contents‑‑including the defamatory
content‑‑and sometimes without any opportunity to ascertain, in
advance, that any defamatory matter was to be included in the matter
at 803. AOL falls squarely
within this traditional definition of a publisher and, therefore, is clearly
protected by § 230's immunity.
129 F.3d at 331-32 (emphasis added). It
is precisely the liability based upon negligent failure to control the
content of users’ publishing of allegedly illegal postings on the Internet
that is the gravamen of Doe’s alleged cause of action.
Such publication of obscene literature or computer pornography is
analogous to the defamatory publication at issue in the Zeran
decisions. Therefore, our
agreement with the reasoning of the federal district court answers the
certified question as to preemption. Accordingly,
we answer the combined and rephrased certified question in the affirmative.
We next turn to the first certified question,
which is whether section 230 applies to complaints filed after its effective
date where the complaint alleges a cause of action based upon acts occurring
prior to its effective date. Again,
we find to be correct the reasoning of the United States District Court in Zeran:
Zeran contends that even if the CDA preempts
a state law cause of action for negligent distribution of defamatory
statements, it cannot have that effect here without violating the stricture
against retroactive application of statutes.
The CDA was signed into law and became immediately effective on
February 8, 1996, over nine months after the posting of the bogus notices
that form the basis of Zeran's claims against AOL.
Yet, Zeran did not file this complaint until April 1996, two months
after the CDA went into effect. This,
then, is a case brought after a statute's enactment but based on facts that
occurred prior to its enactment. In
these circumstances, a statute may not have a "retroactive effect"
absent a clear expression of congressional
intent with respect to such retroactivity. See Landgraf v. USI Film Products, 511 U.S. 244,
280‑81 (1994). Thus, a
court must first determine whether Congress has clearly expressed the
statute's intended temporal reach. If
so, the judicial inquiry is complete and Congress' clear intent must be
implemented. Id. If, on
the other hand, the statute has no express Congressional command with
respect to its temporal application, courts must undertake a second inquiry
to determine whether the application of the statute will result in a
prohibited "retroactive effect."
Id. In this case,
the first step is dispositive, Congress has made its intent manifest.
Section 230 clearly reflects Congress' intent
to apply the CDA to all suits filed after its enactment, notwithstanding
when the operative facts arose. Thus,
in § 230(d)(3), the CDA provides, in pertinent part, that
cause of action may be brought and no liability may be imposed under any
State or local law that is inconsistent with this section.
subsection does not generally refer to conflicting state laws having
"no effect" or being "preempted."
To the contrary, it specifically provides that "[n]o causes of
action may be brought." And
such clear statutory language cannot reasonably be construed to mean that
only some causes of action may be brought, namely those concerning events
arising before the enactment of the CDA.
958 F. Supp. at 1135-37 (citations and footnotes omitted) (emphasis added).
We specifically concur that section 230
expressly bars "any actions" and we are compelled to give the
language of this preemptive law its plain meaning. We therefore concur with the Fourth District Court of Appeal in its
holding that Doe's cause of action against AOL is barred by the plain
language of section 230(d)(3).
Accordingly, for the reasons expressed, we
answer in the affirmative the first certified question and the rephrased
question, which combines the second and third certified questions, and
approve the decision of the Fourth District below.
It is so ordered.
SHAW, HARDING and ANSTEAD, JJ., concur.
LEWIS, J., dissents with an opinion, in which
PARIENTE and QUINCE, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE
REHEARING MOTION, AND IF FILED, DETERMINED.
I understand that it may be somewhat
attractive for the majority to follow an existing published opinion from a
different jurisdiction; however, I conclude that, because the analysis upon
which it is based is faulty and leads to a totally unacceptable
interpretation, it should not be followed.
Therefore, I dissent.
It is clear that Congress, through the
Communications Decency Act, 47 U.S.C. § 230 (the “CDA”), intended to
shield an Internet Service Provider (an “ISP”) from liability due solely
to implementation of a good-faith monitoring program whose goal is to
preclude dissemination of illicit and improper materials through the ISP’s
electronic medium. Contrary to
the majority’s view, however, the carefully crafted statute at issue,
undergirded by a clear legislative history, does not reflect an intent to
totally exonerate and insulate an ISP from responsibility where, as here, it
is alleged that an ISP has acted as a knowing distributor of material
leading to the purchase, sale, expansion and advancement of child
pornography, after having been given actual notice of the particular
activity, by taking absolutely no steps to curtail continued dissemination
of the information by its specifically identified customer, when it had the
right and power to do so. In my view, the result obtained by this Court’s interpretation of
congressional intent in this area frustrates the core concepts explicitly
furthered by the Act and contravenes its express purposes. Through the majority’s interpretation, the so-called “Decency
Act” has, contrary to
well-established legal principles, been transformed from an appropriate
shield into a sword of harm and extreme danger which places technology buzz
words and economic considerations above the safety and general welfare of
I suggest that by interpreting the statute to
provide this carte blanche immunity for wrongful conduct plainly not
intended by Congress, the majority view ignores the common law underpinnings
of the present controversy; fails to accommodate the traditional distinction
between publishers and distributors consistently recognized in American
jurisprudence; overlooks the historical timing of the subject legislation in
the context of developing case law; excludes proper analysis of the careful
wording of the subject legislation; and does not consider the obvious intent
additionally underscored by Congress both in the stated policies underlying
the statute, and in the statute’s legislative history. These grounds, collectively--coupled with the rationale of the very
case which the majority deems controlling--warrant a far different result.
In Zeran (as quoted in the majority
opinion), the Fourth Circuit began by explaining what Congress had intended
when it enacted the Communications Decency Act, 47 U.S.C. § 230.
The legislation was aimed at removing “disincentives for the
development and utilization of blocking and filtering technologies that
empower parents to restrict their children’s access to objectionable or
inappropriate online material.” 47 U.S.C. § 230(b)(4). Specifically,
Congress enacted the CDA as a measure to “overrule Stratton Oakmont v.
Prodigy and other similar decisions which have treated such providers
and users as Publishers or speakers of content that is not their own because
they have restricted access to objectionable material.”
S. Conf. Rep. No. 104-230 at 435 (1996).
I submit that, with this predicate, a correct
understanding of the Stratton Oakmont decision is thus key to a
proper analysis here. In Stratton
Oakmont, the court had held Prodigy, an interactive computer service
like AOL, “to the strict liability standard normally applied to
original publishers of defamatory statements, rejecting Prodigy’s
claims that it should be held only to the lower ‘knowledge’ standard
usually reserved for distributors.
The court reasoned that Prodigy acted more like an original
publisher than a distributor both because it advertised its practice of
controlling content on its service and because it actively screened and
edited messages posted on its bulletin boards.”
Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir.
1997) (emphasis quoted) quoted in majority op. supra p. 10)
(emphasis supplied). While the
initial foray into Zeran’s analysis is thus promising, its eventual
conclusion--and thus, the majority’s corresponding conclusion in this
case, patterned on the analyses contained in the two Zeran
decisions--is, in my view, a startling non sequitur.
Contrary to case law
which has traditionally recognized an important difference between
distributor and publisher liability, the majority opinion rejects any such distinction, relying on the Restatement (Second) of Torts §
577--a venerable treatise published in 1977--for
the proposition that “the law treats as a publisher or speaker one
who fails to take reasonable steps to remove defamatory statements from
property under her control.” Majority
op. at 12 (quoting Zeran v. America Online Inc., 958 F. Supp. 1124,
1133 (E.D. Va. 1997)). However,
close examination of the Restatement (Second) itself reflects that this
reliance is misplaced, both because it is not clear,
from a reading of chapter 24 of the Restatement in its entirety, that section 577(2)
is the section which most properly applies to this controversy, and, I
suggest, because--even if it were--section 577 does not support the
proposition for which it is cited. The
fatal flaw in Zeran’s logic--and thus, in the majority view--is its
erroneous conclusion that, under section 577 of the Restatement of Torts
(Second), distributors are merely an internal category of publishers.
My analysis leads to the conclusion that this
is not at all what the Restatement reflects. First, distributor liability, which we must address, is defined not in
section 577, but in section 581(1) (which appears to apply here).
However, assuming arguendo that section 577(2) did define
“distributors,” it does not reflect that they are a “subset” of
primary publishers. Rather,
they belong to a set of entities who perform a “secondary role in
disseminating defamatory matter authored and published by others.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts §
113, at 810 (5th ed.1984). In
defining publication, the Restatement (Second) provides, in section 577(1),
that “[p]ublication of defamatory matter is its communication
intentionally or by a negligent act to one other than the person defamed.”
In section 577(2), it provides further that one who “intentionally
and unreasonably fails to remove defamatory matter that he knows to be
exhibited on land or chattels in his possession or under his control,”
although not a publisher (as defined in subsection (1), “is subject to
liability for its continued publication.” Restatement (Second) of
Torts § 577. This is a far
different statement than that contained in other parts of chapter 24, which
identify different categories of actors as being “subject to liability as
if [they] had originally published” the defamatory matter (§ 578), or
“subject to the same liability as an original publisher” (§ 581(2).
While a proprietor who fails to remove known defamatory material
exhibited on his property may be subject to tort liability,
such liability is not that of an original “publisher.”
However, it is section 581(1)--involving
those who “only deliver or transmit defamation published by a third
person”--which more properly defines distributor liability, and which
appears most applicable to AOL’s activities here.
In its entirety, section 581 provides:
581. TRANSMISSION OF DEFAMATION PUBLISHED BY THIRD PERSON
Except as stated in subsection (2), one who only delivers or transmits
defamatory matter published by a third person is subject to liability if,
but only if, he knows or has reason to know of its defamatory
One who broadcasts defamatory matter by means of radio or television is
subject to the same liability as an original publisher.
under the more appropriate section of the Restatement (Second) of Torts,
AOL--not as a publisher, but as a distributor (“one who only
delivers or transmits defamatory matter published by a third
person”)--would have potential liability where, as here, it is alleged
that AOL actually knew of the illicit character of the material which it was
transmitting over its Internet service.
Accord, W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 113, at 810-11 (5th ed.1984).
(“It would appear quite clearly that those who perform a secondary
role in disseminating defamatory matter authored and published by others in
the form of books, magazines and the like--as in the case of libraries, news
vendors, distributors, and carriers--would not be subject to liability to
anyone in the absence of proof that they knew or had reason to know of the
existence of defamatory matter contained in matter published.”).
In my view, my colleagues in the majority
overlook and fail to consider this distinction between publishers and
distributors, which is key to an understanding of what Congress, in 1996,
intended to accomplish by enacting the CDA.
Five years earlier, in 1991, a federal district court had held, in
Cubby, that the defendant Internet service provider, CompuServe,
was the equivalent of “an electronic, for profit library.”
776 F. Supp. at 140. The
Cubby court had held, therefore, that CompuServe was entitled to the
same first amendment protection as a “distributor,” subject to liability
only if it knew or had reason to know of the allegedly defamatory
statements. The court
stated that “CompuServe has no more editorial control over such a
publication than does a public library, bookstore, or newsstand, and it
would be no more feasible for CompuServe to examine every publication it
carries for potential defamatory statements than it would be for any other
distributor to do so.” Cubby, 776 F. Supp. at 140. This finding was both consistent with the function served by the ISP in
that case, and with the distinction which, historically, had consistently
been made between publishers and distributors.
It is not surprising, then, that Congress did not enact the CDA fast
on the heels of Cubby, nor mention an
intent to overrule Cubby in the legislative history of the
However, only shortly before enactment of the
CDA, the court in Stratton Oakmont, faced with a similar question,
reached a far different result. There,
the court held that the ISP, Prodigy, would be treated as a “publisher,”
subject to liability regardless of its actual or imputed knowledge.
See Stratton Oakmont Inc. v. Prodigy Services Co., No.
94-31063, 1995 WL 805178, 1 (N.Y. Sup. Ct. May 24, 1995).
The Stratton Oakmont court distinguished Cubby because,
unlike Prodigy, CompuServe had no opportunity to review the contents of any
publication before it was uploaded. The
Stratton Oakmont court concluded that, because Prodigy exercised
general editorial control over its services, it should be held to the
liability of a “publisher” instead of the liability of a
“distributor.” See id.
Thus, even though the courts in Cubby and Stratton Oakmont
both recognized the distinction between publisher liability and distributor
liability, in characterizing the ISP’s function, they reached very
different results. The ISP in Stratton Oakmont, merely by virtue of its “Good
Samaritan” editorial policies, was held liable for matter published on its
service by third parties, even though it was not alleged to have had actual
knowledge of the content of the publication.
This was obviously the legal conclusion which
Congress, in enacting the CDA promptly thereafter, sought to change.
It reflected this intent in two ways. First, the language of the
statute itself could not be more explicit.
It provides, in
230(c)(“Protection for ‘Good Samaritan’ blocking and screening of
offensive material”) that “[n]o 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.”
In Zeran and the majority view here, however, this statement
that an ISP shall not be treated as a “publisher or speaker” of
third-party information has been interpreted to mean not only that an ISP
can never be subject to liability for negligence as a “publisher” of
third-party information appearing on its service, but also that an ISP can
never be subject to liability based upon its own patently irresponsible role
as a distributor who has allegedly been given actual notice of materials
published on its service by a specified customer (in furtherance of criminal
conduct as defined by Florida law)
by soliciting the purchase and sale of explicit child pornography, yet has
done absolutely nothing about it.
This flies in the face of the very purpose of
the Communications Decency Act. At
least one goal of the CDA is, as its title suggests, to promote
“decency” on the Internet. What
conceivable good could a statute purporting to promote ISP self-policing
efforts do if, by virtue of the courts’ interpretation of that statute, an
ISP which is specifically made aware of child pornography being distributed
by an identified customer through solicitation occurring on its service,
may, with impunity, do absolutely nothing, and reap the economic benefits
flowing from the activity?
Such an absurd interpretation is totally
unwarranted. If Congress had
intended absolute immunity, why would it state only that no ISP “shall be
treated as a publisher or speaker of any information
provided by another information content provider?”
As one legal commentator has observed, “[n]otably, the legislation
did not explicitly exempt ISPs from distributor liability, and its specific
reference to ‘publisher or speaker’ is evidence that Congress intended
to leave distributor liability intact.”
Developments in the Law‑‑The Law of Cyberspace, III
The Long Arm of Cyber-Reach, 112 Harv. L. Rev. 1610, 1613 (1999); see
also David R. Sheridan, Zeran v. AOL and the Effect of Section 230 of
the Communications Decency Act upon Liability for Defamation on the Internet,
61 Alb. L. Rev. 147, 168 (1997) (“[B]oth the text of the CDA and its
meager legislative history support the conclusion that when Congress said
‘publisher,’ it meant ‘publisher,’ and not ‘distributor.’
The publisher and distributor terminology have been used in cases and
commentary on the subject of defamation in interactive networks.
It would be reasonable to surmise that Congress would say
‘distributor’ in addition to ‘publisher’ if it meant
‘distributor’ in addition to ‘publisher.’ ) (footnotes omitted).
If blanket immunity were intended, why not state more broadly that no
ISP “shall be held liable” for any information provided on its service
by another information content provider?
In fact, that very phrase was used in the subsection immediately
following § 230(c)(1), which provides:
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
any action taken to enable or make available to information
content providers or others the technical means to restrict access to
material described in paragraph (1).
The reason, pointedly, is that Congress never
intended for such a broad immunity to apply. In cutting a wide swath of immunity from the cloth of this purposefully
narrow language, the analysis contained in Zeran
(and approved by the majority here) turns on its head the very goal of the
Communications Decency Act.
While Congress has recognized that the Internet presents a
"forum for true diversity of political discourse, unique opportunities
for cultural development, and myriad avenues for intellectual
activity," 47 U.S.C. § 230(a)(3), the purpose of the CDA is not, as
the Zeran court espoused, “to promote unfettered speech,”
Zeran, 129 F.3d at 334--most particularly where such alleged
speech is an invitation to purchase child pornography.
To the contrary, even where objectionable material may be
constitutionally protected, the CDA, which was added to "extend the
standards of decency which have protected telephone users to new
telecommunications devices" and to "protect the sanctuary of the
home from uninvited indecencies,” 141 Cong. Rec. S1953 (daily ed. Feb. 1,
1995) (statement of Sen. Exon), sanctions an ISP’s good-faith efforts to
block its dissemination.
Here, moreover, where the communications allegedly pertain to graphic
sex acts involving eleven-year-old victims, First Amendment rights are not
What is implicated is Congress’s
intent to shield ISPs from liability based solely on self-policing efforts
to intercept the very type of material at issue here-- conduct defined by
society as criminal involving material which is invidiously and perniciously
harmful to children. This is
reflected in the second hallmark of Congress’s intent in enacting the
CDA-- the statute’s legislative history.
As expressed in 47 U.S. C. § 230(b),“the stated policy of the
United States” is “to remove disincentives for the development and
utilization of blocking and filtering technologies that empower parents to
restrict their children’s access to objectionable or inappropriate online
material.” While the majority view recognizes that, as reflected in the
legislative history of the CDA referenced in Zeran, “the
‘disincentive’ Congress specifically had in mind was liability of the
sort described in Stratton Oakmont,” majority at 12 (quoting Zeran,
958 F. Supp. at 1134), what it inexplicably fails to recognize is that this
is not the distributor liability recognized in Cubby.
Rather, it is the far stricter standard of publisher liability which
was imposed in Stratton Oakmont, based solely on the ISP’s
implementation of laudable, self-regulating efforts to screen inappropriate
material prior to its publication, which efforts the CDA--as expressed in the policies
set forth as a preamble to the statute---unabashedly encourages.
Given the precise, limiting language of the
statute, the stated policy underlying the CDA, and the CDA’s explicit
legislative history, it is inconceivable that Congress intended the CDA to
shield from potential liability an ISP alleged to have taken absolutely no
actions to curtail illicit activities in furtherance of conduct defined as
criminal, despite actual knowledge that a source of child pornography was
being advertised and delivered through contact information provided on its
service by an identified customer, while profiting from its customer’s
continued use of the service. Such
an interpretation transforms a statute intended to further and support
responsible ISP efforts to protect children and the public from even
questionably harmful and illegal materials into a statute which both condones
and exonerates a flagrant and reprehensible failure to act by an ISP in the
face of allegedly specific, known dissemination of material unquestionably
harmful to children.
In my view, the interpretation adopted today provides a foundation for
far-ranging forms of illegal conduct (possibly harmful to society in far
different ways) which ISPs can, very profitably and with total immunity,
knowingly allow their customers to operate through their Internet services.
I fear that the blanket immunity interpretation adopted by the majority
today thrusts Congress into the unlikely position of having enacted
legislation that encourages and protects the involvement of ISPs as silent
partners in criminal enterprises for profit.
Confident that Congress did not intend such an incongruous result, I
and QUINCE, JJ., concur.
Application for Review of the Decision of the
District Court of Appeal -
Certified Great Public Importance
District - Case No. 4D97-2587
Brian W. Smith, West Palm Beach, Florida,
L. Martin Reeder, Jr. of Steel, Hector and
Davis, West Palm Beach, Florida; and Patrick J. Carome and Samir Chandra Jain
of Wilmer, Cutler & Pickering, Washington, D.C.,
847.011(1)(a), Florida Statutes (1993), provides in relevant part:
person who knowingly . . . distributes . . . or offers to sell . . . any
obscene . . . photograph . .
. [or] image . . . is guilty of a misdemeanor of the first degree . . . .
847.0135(2), Florida Statutes (1993) (Computer Pornography and Child
Exploitation Prevention Act of 1986), provides in relevant part:
PORNOGRAPHY.--A person is guilty of a violation of this section if he
knowingly . . . transmits by means of computer, or
makes, prints, publishes, or reproduces by other computerized
means, or knowingly causes or allows to be entered into or transmitted by
means of computer, or buys, sells, receives, exchanges, or disseminates
any notice, statement, or advertisement, or any minor’s name, telephone
number, place of residence, physical characteristics, or other descriptive
or identifying information, for purposes of facilitating, encouraging,
offering, or soliciting sexual conduct of or with any minor, or the visual
depiction of such conduct.
record reflects that Russell is presently serving lengthy federal and
state prison sentences arising out of events relating to those alleged in
the complaint. Russell pled
guilty and was convicted on federal criminal charges of sexual
exploitation of children and transportation of sexually explicit material
involving a minor and state criminal charges of attempted sexual battery.
U.S.C. § 230 provides in relevant part:
Protection for "Good Samaritan" blocking and screening of
Treatment of publisher or speaker
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.
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
any action taken to enable or make available to information content
providers or others the technical means to restrict access to material
described in paragraph (1).
Effect on other laws
No effect on criminal law
in this section shall be construed to impair the enforcement of section
223 of this title, chapter 71 (relating to obscenity) or 110 (relating to
sexual exploitation of children) of Title 18, or any other Federal
No effect on intellectual property law
in this section shall be construed to limit or expand any law pertaining
to intellectual property.
in this section shall be construed to prevent any State from enforcing any
State law that is consistent with this section.
No cause of action may be brought and no liability may be imposed
under any State or local law that is inconsistent with this section.
230 defines "interactive computer service" as:
information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet and
such systems operated or services offered by libraries or educational
U.S.C. § 230(e)(2).
statute defines "information content provider" as:
person or entity that is responsible, in whole or in part, for the
creation or development of information provided through the Internet or
any other interactive computer service.
U.S.C. § 230(e)(3).
accept that the allegations are based upon information distributor
liability in accord with section 581 of the Second Restatement of Torts
(1977) and as impliedly recognized in Cardozo v. True, 342 So. 2d
1053, 1056 (Fla. 2d DCA 1977), and based upon a statutory violation under DeJesus
v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973).
M. Cordero, Comment, Damnum Absque Injuria: Zeran v. AOL and Cyberspace
Defamation Law, 9 Fordham Intell. Prop. Media & Ent. L.J. 775
(1999); Annemarie Pantazis, Zeran v. America Online, Inc.:
Insulating Internet Service Providers from Defamation Liability,
34 Wake Forest L. Rev. 531 (1999). See
also Ben Ezra, Weinstein, & Co. v. American Online Inc.,
206 F.3d 980, 985-86 (10th Cir. 2000); Does v. Franco Productions,
No. 99C7885, 2000 WL 816779 (N.D. Ill. June 22, 2000).
supra note 7, at 792.
765 So. 2d 39 (Fla. 2000) (observing that, where there is no uniform
interpretation by the various federal circuits regarding the
interpretation of a federal statute, the
approach used by any particular federal circuit is merely persuasive and
not binding); Corporate Securities Group v. Lind, 753 So. 2d 151,
152 (Fla. 4th DCA 2000) (explaining that, where a state appellate court is
asked to decide a federal question as to which there is no Supreme Court
authority directly on point, and no unified position has been established
in the Circuit Courts of Appeal, the state court is obligated to decide
the issue by projecting “what the [United States] Supreme Court would do
if and when it ultimately confront[s] the question”).
the conduct and wrong alleged here may be far more egregious than
defamation and involve other considerations, such is probably the most
appropriate analogy found in our common law as to the status of the
participants. Compare Miami
Herald Pub. Co. v. Ane,
458 So. 2d 239 (Fla. 1984) (holding that, under Florida law, it is
sufficient for a non‑public figure plaintiff to establish, in a
defamation action, that the defendant newspaper published the alleged
false and defamatory statements with negligence, i.e., without
reasonable care as to whether the alleged false and defamatory statements
were actually true or false) with Sexton v. American News Co., 133 F.
Supp. 591, 593 (N.D. Fla. 1955) (recognizing that a newspaper vendor may
avoid liability by showing that “he neither knew nor ought to have known
that the paper he was selling contained libelous matter”), cited in
342 So. 2d 1053, 1056 (Fla. 2d DCA 1977) (examining, in the context of a
tort action against the distributor of a cook book for personal injuries
allegedly suffered as a result of inadequate warnings contained therein,
the “closely analogous” principle that “distributors of newspapers
and periodicals cannot be even held legally responsible for defamatory
material contained therein where the dealer did not know and reasonably
could not have known that the publication contained defamatory
material”); see generally R. James George, Jr. & James A.
Hemphill, Defamation Liability and the Internet, 507 Prac. L. Inst.
691, 694 (1998) ("The 'publisher/distributor' distinction has existed
for years in the common law of libel.").
the general common law tort principles contained in the Restatement are,
of course, still viable, the treatise has yet to incorporate the realities
of the World Wide Web. As observed by the author of a 1996 law review article who attempted to reconcile Cubby with
Oakmont, “Megabyte. Mouse.
E‑mail. CD‑ROM. Hard drive. Multimedia. World Wide Web. Five
years ago, these were words that few in the population understood, let
alone used in conversation.” Matthew
C. Siderits, Comment, Defamation in Cyberspace: Reconciling Cubby, Inc.
v. Compuserve, Inc. and Stratton Oakmont v. Prodigy Services Co., 79
Marq. L. Rev. 1065, 1081 (1996) (concluding that, “[a]lthough some may
argue that on-line services act as publishers, the proper standard to
apply to on-line services is the distributor framework”); see also Yochai
Benkler, Net Regulation: Taking Stock and Looking Forward, 71 U.
Colo. L. Rev. 1203, 1205 (observing that “[t]he concept of regulating
the Net‑‑in the lawmaking or regulatory sense, rather than
engineering sense‑‑did not exist prior to the 1990s because
"the Net" did not yet exist as a society‑wide
communications medium”). Although
the treatment of defamation in the 1977 edition of the Restatement of
Torts encompasses radio and television, see § 581, Restatement
(Second) of Torts (1977), it has yet to address the role of Internet presences. This
would appear to be particularly apt in light of the multiple functions
which the Internet now serves, including, for example, the recent
publication of a Stephen King book directly on the Internet.
(reflecting Stephen King’s commentary regarding his recent on-line
publication of The Plant, which King described as “an epistolary
novel set in the early 1980s (before e-mail, in other words, and when even
the fax was a fringe technology),” and regarding which, King had advised
internet users: “My
friends, we have a chance to become Big Publishing's worst nightmare. Not
only are we going glueless, look Ma, no e-Book!”).
In fact, a search of the Westlaw database of Florida decisions
reveals that the word “Internet” did not even appear in Florida case
law until 1996. And it was only in 1999
Amendments to the Advertising Rules in the Rules Regulating the Florida
Bar that “Internet presences such as home pages or World Wide Web sites,
unsolicited electronic mail communications, and information concerning a
lawyer's or law firm's services that appears on World Wide Web search
engine screens and elsewhere” were first regulated by this Court.
See Amendments to Rules Regulating Florida
Bar‑Advertising Rules, 762 So. 2d 392, 425 (Fla. 1999).
577(2) does not appear to have been cited as persuasive authority in many
cases. Compare Dillon
No. 95APEO5-622, 1995 WL 765224 (Ohio Ct. App. 1995) (citing
577(2) as persuasive authority in a
defamation case involving lewd language painted on a bus parked on the
defendant’s property) and Southern
Bell Tel. and Tel. Co. v. Coastal Transmission Service, Inc., 307
S.E.2d 83, 85 (Ga. Ct. App. 1983) (citing
§ 577(2) in a case involving alleged libel which
appeared in a display advertisement in the Southern Bell yellow pages
telephone directory which misprinted the plaintiff’s slogan, "Get
it in gear," as "Get it in rear") with Dominick
v. Sears, Roebuck & Co., 741 S.W.2d 290, 294 (Mo. Ct. App. E.D.
1987) (refusing to extend liability to the situation before it, which
involved a suit for defamation against a department store based upon a
credit report issued by a third party which the store maintained, and
which contained a defamatory statement made by the third party, observing
that “[t]he classic illustration of this rule is the situation of the
tavern owner who fails to remove, after knowledge thereof, a libelous
statement about plaintiff written by another on a wall in the restroom of
his establishment”) (citing § 577(2), Illustration 15).
Is the function served by the provider of an Internet service
“bulletin board” more like that of a physical establishment which
maintains a cork bulletin board (which would be covered by § 577(2)), or
more like a telephone, ticker, teletype or telegraph company (covered by
§581(1)) which transmits third-party messages for a fee?
Since the subject activity involves the transmission of messages
through an electronic medium, which can only be sent or received through a
telecommunications interconnection for which the customer pays a fee, the
latter analogy appears more appropriate.
one legal commentator has observed, the Zeran court “based its
holding on a questionable interpretation of the word ‘publisher,’
stating that ‘distributor’ was merely a subset of the word
in the Law‑‑The Law of Cyberspace, III The Long Arm of
Cyber-Reach, 112 Harv. L. Rev. 1574, 1613 & n. 23 (1999) (citing Zeran,
129 F.3d at 330‑33, and indicating that “a more detailed criticism
of the Zeran court's verbal gymnastics” can be found in David R.
Sheridan, Zeran v. AOL and the Effect of Section 230 of the
Communications Decency Act upon Liability for Defamation on the Internet,
61 Alb. L. Rev. 147, 168‑72 (1997)).
577(2) of the Restatement recognizes potential liability for a
failure to remove defamatory material on his land or chattels of which he
or she is aware: "when, by measures not unduly difficult or onerous,
he may easily remove the defamation, he may be found liable if he
intentionally fails to remove it." Dominick v. Sears, Roebuck
& Co., 741 S.W.2d 290, 294 (Mo. Ct. App. 1987)
(citing Restatement of Torts (Second) §577(2) (1977)).
conclusion is further bolstered by the fact that Congressman Cox, the
of section 230, during floor
debate on the measure, spoke not only about the Stratton Oakmont
decision, but also about the result reached in Cubby, stating:
Federal court in New York, in a case involving CompuServe, one of our
online service providers, held that CompuServe would not be liable in a
defamation case because it was not the publisher or editor of the
material. It just let everything come onto your computer without, in any
way, trying to screen it or control it.
Cong. Rec. H8460‑01 (daily ed. Aug. 4, 1995) (statement of Mr. Cox).
This statement by Representative Cox underscored the dilemma posed
by the Cubby/Stratton Oakmont analytical schism.
As observed by one legal commentator:
the wake of [Stratton Oakmont], it is likely that most major
commercial on-line services will be faced with difficult choices.
A service might choose to institute very
strict standards to prevent any such defamatory language from
reaching the bulletin boards. Alternatively,
it might choose to take a totally hands-off approach in order that it
appear to have no editorial control whatsoever, so as to fall under the
auspices of a distributor rather than a publisher.
supra note 11, at 1080. While the legislative history reflects
Congress’s intent to “overrule” Stratton Oakmont, there is no
similar mention of a desire to “overrule” Cubby (despite the
fact that Congress was not only presumed to be aware of that decision, but
was actually reminded of it during legislative debate).
Thus, as one legal commentator observed:
result of the CDA was the re‑emergence of the holding in Cubby.
This distinction once made by the district court in Cubby,
resurrected by Congress' CDA, seemingly destroyed any other interpretation
of provider/distributor liability for ISPs. The CDA reduced the field to
only distributor‑type liability.
Hence, individuals pursuing providers for defamatory messages
posted via their servers can only prevail if the provider knew or had
reason to know of the defamatory messages. Accordingly, an ISP would be
akin to a bookseller, vendor, or distributor. In this manner, Congress
maintained an ISP's ability to exercise editorial control without being
subject to a publisher's strict liability. This pendulum, which was
finally set by Congress through the CDA legislation, was then pushed in
another direction with the emergence of Zeran v. America Online, Inc.
H. Spencer, Defamatory
E-Mail and Employer Liability: Why Razing Zeran v. America Online is a
Good Thing, 6 Rich. J.L. & Tech. 25, 9 (2000)
(footnotes omitted) (criticizing as erroneous Zeran’s
interpretation of the CDA as eliminating ISP distributor liability).
§ 827.071(4), Fla. Stat. (1995) (making it illegal for any person “to
with the intent to promote any photograph, motion picture, exhibition,
show, representation, or other presentation which, in whole or in part,
includes any sexual conduct by a child”).
generally John Schwartz, Coalition
to File Suit Over Internet Rules:
Targets New Law as Unconstitutional,
Wash. Post, Feb. 26, 1996, at A4 (explaining that President Clinton signed
the CDA into law “to prevent the display of ‘patently offensive'
materials via computer in a way that minors might see them”), cited
in Robert T. Langdon, Note, The Communications Decency Act § 230:
Make Sense? Or Nonsense?-- A Private Person’s Inability to Recover if
Defamed in Cyberspace, 73 St. John's L. Rev. 829, 842 n. 67 (1999).
Langdon criticizes the CDA as interpreted to preclude distributor
liability, concluding: “There can be no doubt that Internet providers
need to assume some responsibility for the materials that pass through
their services. The distributor framework appears to be the most logical
solution. An Internet provider ought to be liable when it is placed on
notice that it is distributing defamatory material. Anything less is
simply irrational and illogical.” Id.
the statute explicitly recognizes that state causes of action which are
consistent with the CDA are not precluded by it.
It provides, in § 230(e)(3), that “[n]o cause of action may be
brought and no liability may be imposed under any State or local law that
is inconsistent with this section . . . .” (Emphasis supplied.)
It also provides: “Nothing in this section shall be construed to
prevent any State from enforcing any State law that is consistent with
ostensibly following Zeran, the decision in Ben Ezra, Weinstein
& Co. v. America Online, Inc., 206 F.3d 980 (10th Cir. 2000), also
cited by the majority here, is factually distinguishable.
In Ben Ezra, the plaintiff argued that AOL was not immune
from suit under 47 U.S.C. § 230 because AOL had acted both as an interactive computer service and as an information content
participating in the creation and development of the stock quotation
information which was allegedly defamatory. The federal trial court
concluded that AOL qualified for statutory immunity pursuant to § 230,
finding no record evidence that AOL had provided any of the stock quote
information at issue. On
appeal, the plaintiff argued that AOL should
be held liable both because it had “worked
so closely with ComStock and Townsend in the creation and development of
the stock quotation information that it also operated as an ‘information
content provider,’” and because AOL had “deleted some stock symbols
or other information from the data base in an effort to correct the
errors.” 206 F.3d at 985.
The appellate court first stated its belief that the plaintiff had
“not demonstrated [AOL] worked so closely with ComStock and Townsend
regarding the allegedly inaccurate stock information that [it] became an
information content provider.” Id. The appellate
court then observed that, by deleting the symbols, AOL, which “simply
made the data unavailable and did not develop or create the stock
quotation information displayed,” was merely “engaging in the
editorial functions Congress sought to protect.”
Id. at 986. Thus,
the plaintiff in Ben Ezra unsuccessfully sought to hold AOL liable as an original publisher based both upon unproven allegations that
AOL had become an information content provider by working closely in the
development of inaccurate information posted on its Internet site, and
upon an erroneous legal theory that AOL’s editorial efforts to remove
such information after it was posted also rendered AOL liable as
an original publisher.
v. Franco Productions, No. 99 C 7885, 2000 WL 816779 (N.D.Ill.,
Jun. 22, 2000) (similarly rejecting, on the basis of immunity, the claim
of thirty university football players that the defendant Internet service
provider--not shown to be an information content provider, nor alleged to
have been given actual notice of any illegal activity--had liability as
a publisher based upon the posting, sale and
dissemination by third-party users of the ISP’s web page of certain
images of the athletes in various states of undress which, without the
athletes’ knowledge or consent, had been obtained by use of hidden
videotape cameras in restrooms, locker rooms, or showers).
therefore, application of Zeran’s faulty logic was not dispositive based
upon the allegations and theories of liability asserted in Ben
Ezra and Franco
Productions, nonetheless, the Pied Piper effect of Zeran’s initial analysis does appear to have
diverted some other authors of its progeny from more closely examining the
difference between distributor and original publisher liability where such
distinction might arguably apply.
v. America Online, Inc., No. 00-3367 (D. N. J. Dec. 20, 2000), for
example, the federal district court found that, pursuant to 47 U.S.C. § 230,
AOL was immune from suit based upon certain tort claims based upon
allegations “that AOL negligently failed to live up to its contractual
obligations to Green, by refusing to take the necessary action against
[users of an AOL “chat room” in which Green participated] that would
prevent them from further harming and defaming [Green]” by impersonating
him in sending messages to other men in the chat room asking them for
homosexual sex, and in sending messages to women in the chat room telling
them that Green was bisexual.
The court, in dismissing the plaintiff’s tort claims, briefly
stated its reliance upon
Ben Ezra and Zeran, wholly failing to address any potential
distinction between original publisher liability and distributor
commentaries reflect a variety of views regarding Zeran; many of
these are critical of Zeran’s analysis.
See, e.g., Ian
Ballon, Zeran v. AOL: Why the Fourth Circuit Is Wrong, J. Internet
L., Mar. 1998, at 6; Steven M. Cordero, Comment, Damnum Absque Injuria:
Zeran v. AOL and Cyberspace Defamation Law, 9 Fordham Intell. Prop.
Media & Ent. L.J. 775 (1999) (criticizing the Fourth Circuit's
decision in Zeran, arguing that the court overextended protection
to ISPs); R. Hayes Johnson, Jr., Defamation in Cyberspace: A Court
Takes a Wrong Turn on the Information Superhighway in Stratton Oakmont,
Inc. v. Prodigy Services Co., 49 Ark. L. Rev. 589, 595 (1996)
(examining the problems that could result from the Stratton Oakmont
approach); David R. Sheridan, Zeran v. AOL and the Effect of Section
230 of the Communications Decency Act upon Liability for Defamation on the
Internet, 61 Alb. L. Rev. 147 (1997); Michael H. Spencer, Defamatory
E-Mail and Employer Liability: Why Razing Zeran v. America Online is a
Good Thing, 6 Rich. J.L. & Tech. 25 (2000); David Wiener, Negligent
Publication of Statements Posted on Electronic Bulletin Boards: Is There
Any Liability Left After Zeran?, 39 Santa Clara L. Rev. 905 (1999). Most particularly where, as here, there is no consensus of opinion
expressed by the federal appellate courts to provide guidance regarding
the correct interpretation of the federal statute at issue, the opinion
expressed in Zeran is merely persuasive, and not controlling.
Cf. Gross v. State, 765 So. 2d 39 (Fla. 2000)
(observing that, where “the various federal circuits are in disagreement
on the appropriate definition” of an applicable term under a subject
federal statute, this Court is free to adopt either the narrow view or the
broad view of the statute, “because the approach used by any particular
federal circuit is merely persuasive and not binding”).
the Supreme Court later deemed unconstitutional those portions of the CDA
which prohibited the transmission of indecent material, see Reno
v. ACLU, 521 U. S. 844 (1997) (approving district court’s judgment
enjoining the Government from enforcing § 223(a)(1)(B)'s prohibitions
insofar as they relate to "indecent" communications and from
enforcing § 223(d)), § 230, providing protection for “Good
Samaritan” blocking and screening of offensive material, has not been
light of the various roles which ISPs are now assuming in transmitting
on the Internet, a function-based analysis of potential ISP liability
under the CDA would appear to be most appropriate.
See generally Joshua
M. Masur, A Most Uncommon Carrier: Online Service Provider Immunity
Against Defamation Claims in Blumenthal v. Drudge, 40 Jurimetrics J.
217, 227 (2000) (advocating an approach which reconciles the CDA with the
common law by looking to the role played by the ISP in each case:
“Functional line‑drawing appears to be the only fair, effective,
and accurate manner to interpret the statute. Differentiating a common
carrier acting as such from one that acts as a republisher provides
immunity where appropriate, yet maintains liability where immunity is
inappropriate. Such an interpretation would maintain the clear common law
standards for republication liability where it remains unchallenged, yet
negate the dubious precedent‑‑Stratton Oakmont‑‑at
which section 230 was squarely directed.”); see also Sheri
Hunter, Defamation and Privacy Laws Face the Internet,
17‑FALL Comm. Law. 16, 17 (interpreting section 230 of the
CDA as granting a "distributor" status to ISPs, and arguing
that, when an ISP knowingly distributes defamatory messages, it should not
be afforded such a status).
absurd implications of Zeran are contrary to the very core of the
Decency Act, which, through section 509 of the Telecommunications Act of
1996 (entitled "On‑line Family Empowerment") added § 230
(entitled "Protection for private blocking and screening of offensive
material"). As stated in
one legal commentary:
result [in Zeran] gives an ironic twist to Congress' response to
Stratton Oakmont: information service providers can not incur liability
for their failure to monitor content, because to hold otherwise would
provide them with an incentive to fail to monitor content! The CDA's
protective umbrella, intended for "good Samaritan" monitors,
turns out also to shield those who can not or will not provide such a
J. Davidson et al., The Law of Cyberspace Liability of Information
Service Providers, 574 Prac. L. Inst. 143, 155 (2000) (emphasis