Legal Commentary

My last post argued that Section 230 should be reinterpreted to immunize only content that comes from third parties via the interactive service offered by providers.  This would clear up many of the conflicts in the law, though providers would still be immune from some reprehensible conduct of its users.

Some types of conduct, however, should not be immunized even without reinterpreting the statute.  This final post in the series will tackle a couple of examples: marketing statements and celebrity impersonation.

Marketing Statements

As Eric Goldman points out, there is apparently some confusion about marketing statements made by companies that are rendered false by users. Two examples - First, an auction site might claim that its auctions are safe when in fact users commit fraud (court held no immunity).  Second, an adult web site might claim that its users are 18 when in fact some are minors who lie about their age (court held immunity because it was a "regurgitation" of user content).

The answer lies in a straightforward reading of the statute: providers shall not be held liable as speakers of third party content.  The statute says nothing about providers who make their own representations about what the third party content.  Providers who say "our users are polite" cannot be immune if the users are impolite.  Thus, neither the auction site nor the adult web site above would be immune.

This reading of the statute makes policy sense as well. While we want to encourage third party content and open contributions, we do not want to encourage false representations about such content. True, it is costly for providers to verify that their factual assertions are accurate, but not nearly as costly as trying to fact check each and every piece of content as it comes in.  We want providers who make representations about their quality of service to ensure that those representations are true, and letting a web site say "our users do ____" without actually enforcing a policy to make that fact true is bad policy.

Note that this provider/third party distinction would still immunize aggregation of third party content.  In Gentry, for example, eBay was immune even though it re-packaged the content in a variety of ways and aggregated user feedback. The difference is that eBay's interactive service managed the content, and eBay never represented that any of the information was true, verified, or otherwise accurate.

Celebrity Impersonation

Bill McGeveran discusses the problem of celebrity impersonation in online services such as Twitter. As he points out, lawsuits against the provider "would all be blocked, quite routinely, by section 230." But there is no reason why this must be so. 

First, celebrity impersonation is a violation of a right of publicity, which could be considered an intellectual property right (albeit a state right), which is exempted from Section 230's immunity.  As the comments to Prof. McGeveran's post make clear, there is a split (and more confusion) about whether rights of publicity are exempted.

Prof. McGeveran wonders whether it is good policy to give "more" protection to celebrities in this context when we give them less protection in other contexts, such as defamation. My answer is that ship has sailed.  We already give more protection to celebrities off-line, so doing so online, where you cannot actually see the celebrity's face or hear her voice makes distinguishing truth from fiction even more difficult. I also think that more harm than good befalls readers of celebrity impersonation (unless parody is clear), so the protection helps more than just the celebrity.

Even without considering a carve-out for rights of publicity, a straightforward statutory interpretation might still limit immunity for impersonating another person.  The statute immunizes a provider for content provided by a third party. This certainly doesn't immunize advertisements that a celebrity uses a service (see marketing representations, above), and it arguably does not immunize a provider's allowing user to impersonate another.  Yes, the provider would be immune from any of the content posted about the third party, but not necessarily for providing a system that does not, for example, check identity.  Identity is arguably not content.  This, I realize, is a much more controversial reading of the statute, but it arguably could apply even to non-celebrities.  That said, I think the policy implications of such a reading are troublesome, as the cost of verifying identity of all users - both in verification and in loss of anonymity - is not one we want providers to bear.

In any event, loss of immunity does not mean that the provider is necessarily liable.  I suspect that a common law notice and takedown procedure would work just fine for celebrity impersonations.  It is relatively easy to prove that a user is not in fact a celebrity, and the complainer is, in fact, a celebrity.

Section 230 is a powerful ally for online providers and a good thing for the internet generally.  These last two posts, however, show that courts should more closely read and follow the language of the statute, and that they can do so in a way that prevents at least some of the harms that come with unwanted user content without sacrificing the good that Section 230 provides.

This is not only my last post in this series, but my last post in this guest blogging stint.  Thanks for having me; I had a great time, and hope to be back soon!