Forums represent the first form of user-generated content websites on the web. Unlike other types of sites that have faded out of use over time, forums remain popular to this day. In this post, we take a look at perhaps the most common legal issue faced by forum owners – defamation claims.
Defamation is the act of damaging the reputation of a third party by making a false or unjust statement. The false statement is a factual assertion that has no reasonable basis. For example, if I have a falling out with my accountant and then write on Facebook that the accountant is a child molester, I’ve defamed him.
Defamation is often also given the title “slander” or “libel.” Slander and libel are two sub-categories of defamation. If a person makes the offending statement orally, then it is classified as slander. If the offending statement is made in writing, then it is considered libel. My Facebook accusation against the accountant would be a form of libel.
Nature of Forums
A forum is a platform created for the exchange of information and opinions. Disagreements are common. Whereas people in a face-to-face discussion will generally act maturely when disagreeing about a topic, the same cannot be said for members of forums.
The design of most Internet forums is such that “artificial bravery” is a serious problem. This artificial bravery comes in the form of anonymity. Just as catnip may remove any inhibitions on the part of a cat, anonymity seems to remove any sniff of maturity from many forum members. An otherwise respectable member of society will post the most outlandish of statements without a secondary thought.
The tendency to make wild, unsubstantiated statements on Internet forums often introduces an element of defamation to the equation. The defamation occurs in the form of libel since it is a written claim, and members tend to get their money worth when blasting another member. These same members then appear shocked to learn liability could arise from their defamatory statements. The question is whether the same is true for the forum.
Section 230 of the Communications Decency Act
The Communications Decency Act was passed in 1996. As the name hints at, this federal law was designed to reign in pornography on the web. The subject is a favorite with politicians of both parties; politicians who appear to have almost no understanding of the concept of freedom of speech as protected by the First Amendment. In the case of the “CDA”, Congress so overreached that the Supreme Court overturned the law before it could be enforced even once. The Supreme Court, however, left in place the tiny section of the legislation that did not violate the First Amendment – Section 230. Ironically, this section of the CDA has become one of the key legal foundations of the web.
Section 230 is incredibly important to website owners allowing user-generated content and statements. The clause states that Internet service providers cannot be held liable for anything third parties publish on a platform maintained by the service provider so long as the legal claim in question requires a showing of a “publishing.” [This language is important, so stay with me here.]
Specifically, the relevant clause of Section 230 reads:
(c)(1) Treatment of publisher or speaker:
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.
A forum is considered an interactive computer service. Given this fact, the highlighted language above becomes critical when you consider the elements a party must prove to win a defamation claim in court:
- The publication of a statement of fact,
- The statement is false or unprivileged, and
- The statement injuries the reputation of the suing party.
The first element of the defamation claim requires the showing of a “publication.” Since Section 230 of the CDA states no interactive computer service [a forum] shall be treated as a publisher of any information provided by another information content provider [a forum member], the suing party is unable to prove the first element of the complaint as a matter of law.
In many cases, a forum sued for defamation can successfully defend the matter though a motion to dismiss at the outset of the lawsuit. Some judges, however, are less than up to speed on the web. In these cases, the litigation can stagger along for four to six months until a motion for summary judgment is filed at which time even the dimmest of judges usually dismiss the claims against the forum defendant.
The ironic aspect of this legal discussion is the oddity of the law. Congress created the Communications Decency Act to curb free speech online by regulation online pornography. The effort failed so badly that the leftover provisions of the law have produced the opposite result. Under Section 230, defamation lawsuits are nearly impossible to win against user-generated content sites be they forums, social media sites, or even large video sites such as YouTube.
Passive vs. Active
I would be remiss if I didn’t discuss the issue of passive versus active participation in the defamatory conduct. More than a few forum owners have interpreted Section 230 as providing them carte blanche to run amuck. Section 230 protection only applies where the forum management and employees are passive participants in the allegedly defamatory act. The immunity is lost when a moderator, forum owner or employee actively makes the defamatory statement. Let’s look at a few examples.
You run a forum on political topics. A member starts a thread on the candidacy of Hillary Clinton, a topic sure to generate heated opinions. Two members start arguing over Mrs. Clinton. The argument turns ugly with one member making clearly defamatory statements about the other member. A moderator reads the thread but takes no action. In this scenario, the forum cannot be sued because of the protections provided under Section 230 of the Communications Decency Act.
Same example, but let’s tweak it a bit. In this scenario, the moderator reads the thread with the defamatory comments. He refers the issue to the owner of the forum, the inevitable “Bob Smith.” Bob is politically active and jumps into the fight. Before you know it, Bob is slinging mud. At this point, the forum is no longer a passive platform. The owner is actively engaging in the argument. A court is likely to rule the Section 230 protections are no longer in place, which means the forum will be a defendant in the libel lawsuit.
Defamation is a constant problem on Internet forums. As a forum owner, you are protected by Section 230 of the Communications Decency Act. Just keep in mind there must be a business-wide policy of not engaging in the argument giving rise to the defamatory statements since doing so could waive the Section 230 protections.
Own a forum and have questions? Contact me for a consultation.
Richard A. Chapo, Esq.