Immunizing Internet Service Providers from Third-Party Internet Defamation Claims: How Far Should Courts Go?
Patel, Sewali K., Vanderbilt Law Review
On April 25, 1995, a notice titled "Naughty Oklahoma T-- shirts" appeared on an America Online ("AOL") bulletin board.1 The notice advertised T-shirts with slogans such as "Visit Oklahoma ... It's a BLAST!" and "Putting the kids to bed ... Oklahoma 1995."2 In short, the notice glorified the Oklahoma City bombings of 1995, which killed 168 people.3 Under the only known identity of "Ken ZZ03,"4 the author invited readers to call "Ken" at the listed phone number, which belonged to a Mr. Kenneth Zeran.5 While Mr. Zeran's first name was in fact Ken, Mr. Zeran was not responsible for posting the notices Rather, the bogus notice was part of a vicious prank played upon Mr. Zeran.7 As a result of this prank, Mr. Zeran received a series of angry, intimidating phone calls, including some death threats.8 The advertisement notice also had a serious, negative impact upon Mr. Zeran's business,9 which was dependent upon his ability to communicate by telephone.10 The constant, offensive
phone calls severely interrupted Mr. Zeran's work, thereby causing him both emotional and economic suffering.11
Mr. Zeran immediately contacted AOL and asked them to remove the bogus advertisement, informing AOL of the harm that it was causing him.12 AOL promptly complied with Mr. Zeran's request.13 The next day, however, a second notice, just as vulgar as the first, appeared on AOL's bulletin board.14 Again, Mr. Zeran demanded that AOL remove the notice and take steps to block future false notices bearing his name and phone number.15 While AOL informed Mr. Zeran that they were taking steps to delete the notice and terminate the account that was posting the notices,16 a series of these offensive notices continued to appear on AOL through May 1, 1995.17 As a result, the threatening and abusive phone calls persisted long after the notices were finally removed.18
About a year later, Mr. Zeran decided to seek redress for the injuries that he had suffered as a result of the defamatory statements19 posted on AOL.20 In April 1996, Mr. Zeran sued AOL for failing to respond adequately to the bogus notices posted on its bulletin board after he informed AOL that the notices were false and defamatory.21 In response to Mr. Zeran's claim, the District Court of the Eastern District of Virginia granted, and the Fourth Circuit affirmed, AOL immunity from any liability for the defamatory notices under (sec) 230(c) of the Communications Decency Act of 1996
(the "CDA").22 Thus, Mr. Zeran lost his case and was provided no remedy or compensation for the harm he suffered as a result of the defamatory notices posted about him on AOL.
Mr. Zeran is not alone; his case exemplifies a problem that is becoming more and more common in today's society as the Internet becomes increasingly pervasive. Albeit an extreme example, Mr. Zeran's case nonetheless illustrates the gravity of the problem of defamation over the Internet and the severity of the harm that it can cause. These instances of so-called third-party Internet defamation are uniquely problematic because Internet Service Providers ("ISPs") are usually granted immunity from any liability, leaving the plaintiff with no remedy. In the past five years, there has been an influx of cases in which unknown third parties have posted defamatory statements over the Internet through message boards,23 chat rooms,24 or e-mail.25 The victims of this type of third-party defamation26 often suffer real harm, such as termination or loss of reputation, as a direct result of the false statements made about them. Increasingly, people are opting to sue their ISP,27 such as AOL, for posting these allegedly defamatory statements, since the actual defamers are usually unknown.28 Because the Internet is a
recent, complex medium that cannot be neatly reconciled with established common law defamation principles, these Internet defamation cases add a new dimension to existing defamation law, and make the analysis more complicated. …