Academic journal article Federal Communications Law Journal

Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers under Section 230 of the Communications Decency Act

Academic journal article Federal Communications Law Journal

Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers under Section 230 of the Communications Decency Act

Article excerpt

I. INTRODUCTION

Unlike the antiquated system of posting a defamatory flier on a signpost or publishing a slanderous article in the local newspaper, in today's Internet era, a spiteful person may post defamatory information on the Internet with great ease and anonymity, reaching a vastly larger community. (1) The amorphous characteristics and constant expansion of the Internet greatly increases the potential damage to one's reputation caused by defamation while keeping the speaker relatively safe from liability. (2) The key, for electronic defamation tortfeasors, is the use of Internet Service Providers ("ISPs") who allow persons to stealthily travel on the information superhighway. (3) As a response to this problem, defamation law, which is largely common law and governed primarily by the States, (4) entered the electronic realm in an attempt to curb the potential abuses of information technology. Realizing a growing concern for cyberdefamation, courts were willing to impart traditional common law tort principles into the digital realm and hold ISPs liable as publishers. (5) This judicial intervention into the Internet directly conflicted with the continued growth and unrestricted access to the knowledge and discourse available on the Internet. (6)

At the same time, the influx of Internet technology into the workplace sparked immense debate among legal scholars regarding its potential ramifications. Yet, these scholars focus minuscule attention on what impact such technology will have on the traditional employer concern of defamation suits. (7) While "electronic mail (`e-mail') and Internet use in the workplace have experienced tremendous growth in the last five years," (8) employers are also one of the traditional defendants in defamation actions and the target of a recent increase in defamation suits brought by former employees. (9) Many of these suits are based on unflattering reference letters to potential employers or negative comments regarding former employees to customers. (10) A growing trend in defamation lawsuits is to base such claims on internal workplace communications which defame a co-worker, including "the reasons for an employee's discharge, statements made in internal performance evaluations, statements made during corporate office meetings, in internal correspondence and memoranda, and in internal security reports." (11) With access now available from the workplace to the Internet, internal and external electronic bulletin boards, user groups, internal and external e-mail, chat rooms, electronic libraries, and intranet and extranet systems, (12) the door is wide open for the publication of defamatory statements. Employees with ready access to these fora may implicate an employer in tort liability with a simple click of the mouse. Despite this potential liability, employers continue to provide this access free of charge to their employees. (13)

This brings us to the conflict at issue in this discussion. While we credit employers for providing employees with free access, such access comes at a price to the public because employers are one of the traditional purveyors of defamatory comments. To complicate matters, Congress stepped in to counteract judicial interference with Internet growth through defamation suits by enacting the Communications Decency Act (CDA), which is codified at [section] 230 of the United States Code. (14) In pertinent part, [section] 230 declares 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." (15) This new Section provides broad federal immunity for ISPs when defamatory material of a third party is published using their services, (16) and further provides immunity should the ISP exercise editorial control over the content by deleting potentially offensive material. (17) The purpose of [section] 230, according to Congress, is to deregulate the Internet and to allow ISPs to self-govern the content. …

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