The Internet is a seemingly limitless universe of ideas, marketing and free speech. At times, that speech can be cruel, misleading and objectionable. Often, the most offensive speech appears on blogs and other websites which allow for postings by individuals other than the owner or operator of the blog or website. If an individual is the target of such harmful speech, does that person have legal recourse against the publisher of that speech? Furthermore, who is the publisher of the speech; the operator of the website or the individual posting the comment? The answer to these questions is dictated by Federal legislation known as the Communications Decency Act (CDA).
Under the CDA, an owner or operator of a blog or website is not a “publisher” of third party comments posted on the blog or website and is therefore immune from local and state causes of action based on the posting of those comments. Thus, an individual who is purportedly harmed by a third party post on a blog or website will not be able to recover on a defamation or invasion of privacy claim against the owner or operator of the blog or website. Such causes of action must be directed at the individual actually posting the comment. However, this presents a difficulty as posts on blogs and websites are often anonymous.
The CDA has had ramifications in local cases. In a Montgomery County case, the CDA enabled Google to avoid liability for allegedly offensive language posted by third parties on a discussion board accessible through Google’s Internet search engine. More recently, the Northampton County Court of Common Pleas dismissed defamation claims against the operator of a political blog where the allegedly defamatory comments were posted on the blog by persons other than the blog operator.
Considering that the CDA makes it easier for individuals to spread offensive and defamatory language on the Internet without fear of legal consequence, what was Congress’s justification for passage of the CDA? In its “Findings” in support of the CDA, Congress noted that the “Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” A policy goal cited by Congress in passing the CDA was “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
While the merits of the CDA are debatable, it is abundantly clear that Congress intends to preserve the Internet as a bastion of free speech and a marketplace of ideas.
