The Grace v. Ebay decision made one of the dumbest circular arguments I've ever read. In 1996, Congress rightly recognized that the promotion of free speech was the very intent of the Internet and thus passed the Communications Decency Act to immunize sites like SI that passively "publish" material from defamation liability, as opposed to sites that "distribute" it. In Zeran v. American Online (4th Cir. 1997), the Federal court reasoned that if sites like SI were not given immunity, there would be no incentive for them to take an interest in ferreting out defamation for fear such activity would immediately open them up to distributor liability.
So then the CA Court of Appeals comes along in Grace v. Ebay and says Zeran actually makes sites like SI lazy, i.e. their total immunity provides a disincentive to take any action at all, which was not the intent of Congress. Thus, by making such sites liable for their content, we would "encourage the development and application of technologies to block and filter access to objectionable material, consistent with the expressed legislative purposes." As if sites like SI have the time, money, resources and legal knowledge to write a custom AI program (or, just as bad, do it manually) to achieve that murky end? Give me a break.
The post to which I originally replied is the EFF and ACLU's response to Barrett v. Rosenthal, a somewhat similar case in some respects but also different in others. Unlike with Grace, the suit is not against some big publisher like Ebay or SI, but against a single individual for reposting on Usenet an allegedly libelous article written by someone else. So whereas Grace would have primarily affected publishers, Barrett goes after the users, like you and me. The similarity, which is at issue, is where one draws the line between publisher and distributor.
For example, one can make a good argument, as per above, that we threaten the very intent of the Internet by asking sites like SI to do legal sweeps of potentially libelous messages. But what about the users? If I repost an article from the WSJ that libelously calls a company CEO a convicted felon, should I also be held responsible? Would it make a difference if my source was some lesser-known web site? How about if I simply quoted someone else on SI? In other words, where do we draw the line... or do we draw a line? I can see this going to the Supreme Court.
More information on Barrett v. Rosenthal available at: casp.net
- Jeff |
