Section 230 Protections Weakened In WA, NJ, and TN (For A Minute)

Section 230 of the Communications Decency Act is a significant Internet law. It gives defamation immunity to website operators when users post defamatory content. Pundits credit the statute for allowing innovation to triumph, because it gave developers leeway to experiment with interaction. To put it another way, without Section 230, social media would not exist today.

But there’s always a flip side. Section 230 of the CDA does pave an easier path for arguably corrosive platforms, like child and revenge porn websites. So, in an effort to combat such sites, attorneys general from several states have quietly waged a war on Section 230.

The outcome? Washington and Tennessee succeed in passing laws that ultimately dismantled the safe harbor provisions in the CDA.

Those laws, however, didn’t last. Backpage.com – a free classifieds site – moved forward with several lawsuits that questioned the constitutionality of the statutes. Ultimately, Backpage emerged victorious. Why? Perhaps the Tennessee trial court judge said it best:

The Constitution tells us that when freedom of speech hangs in the balance — the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue.

U.S. State Attorneys Wage Low-Key War on Section 230

In early 2013, New Jersey tried to tackle the child pornography problem by hobbling Section 230. But like Tennessee and Washington before it, the court struck down the statute. 

Judges reasoned that section 230 is meant to make things “safer” online. But the NJ law included a loophole that belied said goal. How? Well, the law indicated that websites must have knowledge about the offending material to be held responsible. In a way, it gave websites an excuse, if not an impetus, to look the other way.

EU Website Liability: Court Says Websites Are Responsible For User Comments

Our friends on the other side of the Atlantic have different Internet laws. In fact, earlier this month, the European Court on Human Rights effectively placed the onus of defamation liability on website operators – the exact opposite of Section 230 of the CDA.

Delfi AS v. Estonia: EU Officials Say Websites Are Responsible For Anonymous Posters’ Comments

In 2006, Delfi — the CNN of Estonia — ran a story about a ferry company’s contentious decision to change routes. Outraged by the news, angry customers took to Delfi’s website and let the insults rip. Death threats and insults flooded the page.

Business dwindled and the ferry company sued Delfi over “highly offensive or threatening posts about the ferry operator and its owner.” In 2008, an Estonia court ruled in favor of the ferry company and ordered Delfi to pay 360 euros worth of damages.

Despite the small amount, Delfi kept fighting and took the issue to the EU governing body. The news portal argued it was a “passive and neutral” conduit, as outlined in the European E-commerce Directive, and should not be liable for users’ comments.

Pundits were sure that Delfi would win, but the European Judicial Board handed down an unexpected decision, in favor of the ferry company. In short, the European Court’s ruling was — and remains — alarming. Why? Because it jeopardizes anonymous speech, an essential component of healthy democracies.

Why Did The EU Court Rule Against Anonymous Online Speech?

How did the European Court come to its decision? It reasoned:

1. It’s the responsibility of “domestic courts” to interpret violations of domestic law. As such, the Estonian court was in compliance with the “prescribed by law” requirement of the EU convention.
2. Under convention rules, member states can put limits on freedom of expression if it is to protect a person’s reputation, so long as interference is “proportional.”
3. Delfi should have anticipated the offensive posts and “exercised an extra degree of caution.”
4. Despite the existence of a disclaimer saddling posters with full liability for their posts, plus a note banning “threatening and defamatory” comments, the site failed to remove certain posts, but did others. Judges considered the inconsistency.
5. Yes, the ferry company could have sued each commentator individually, but since users could register without providing identifying information, it was “reasonable” and “practical” for the ferry company to proceed with a claim against Delfi.
6. Damages were small, plus the order didn’t include speech-limiting language.
7. The paltry amount of 350 euros was appropriate and “proportionate” to the violation.

Why EU Rulings Matter For U.S. Websites

You may be thinking, “My website is in the U.S., I don’t have to worry about legal shenanigans on the other side of the Atlantic.”

Think again.

Website operators in North American absolutely need to consider European Internet laws – because digital packets don’t recognize political boundaries. As Tim Worstall said, “commentary is to be judged by the jurisdiction where it is read, not where it is written or hosted.”

Now, if you don’t have assets in a given foreign jurisdiction, you have little to worry about. But if your goal is growth, in today’s world, paying attention to global happenings is a must.

Do you need the help of an Internet law attorney? Kelly Warner focuses on all things online business. Get in touch today to begin the conversation.