After considering everything you posted, I still wonder just what in § 230 is unclear to you. On its face, it answers every "argument" you have made.
Your precise "points" were:
1. "230 deals with issues of editorial discretion. Si [sic] has discretion as evidenced by removing poster [sic] who post inappropriate language, address, personal phone #'s etc..."
Okay, so what? AOL has TOU discretion. YHOO has TOU discretion. Every service has TOU discretion -- including your phone company, who can shut off your service for misuse of it, just like SI. AOL, YHOO, RB, and every other message board and content provider has a TOU policy. That policy is for their business purposes though and has nothing to do with liability for content posted by third party sources. If SI directly created and published info that said that the CEO of XYZ Corp. was a criminal and scoundrel, they would be liable because the information was not provided by a third party. However, under the express terms of § 230, when such comments are made by a third party user, SI (as the interactive service provider) has no liability.
2. "They also are specifically advertising as a financial site as evidenced by there front page marketing."
Again, so what? Just where is there language in the statute that says that a company does not qualify for the liability protection if they advertise as a "financial site?" Can't find it, you say? If you don't already know why, I'll make it easy; it is not there. BTW, AOL, YHOO, and many others also advertise their financial site services. Few businesses stay in business long if they don't advertise. It is just plain silly to suggest that advertising takes a company out of the statutory protections. Had Congress intended such an exception, it would have written one into the statute.
3. "Zeran v. AOL delt [sic] with 3rd party issues whereas Si [sic] has responded to 3rd party complaints quickly as evidenced by SI BOB appearing on the "Arm chopping issue" within 24 hrs and which puts them in a different category regarding the term "service provider."
Are you sure you read that before you posted it? Aside from not making any sense, guess what: AOL responds just as quickly to "3rd party issues." If you violate the TOU, you get a reaction; here and on AOL. (YHOO is a lot slower, but that is YHOO, they just don't seem to care as much.) So which way do you want it? Based on your argument now, if SI responds, they are liable. Based on your earlier argument, if they fail to respond they are liable. You cannot have it both ways.
The implication from what you have said is that SI-Bob indicated that your post was a TOU violation. I did not read that into his post and he sure did not say it. If you took it that way, it is probably the result of a guilty conscience. I suspect that if what you posted had been a TOU violation, you would not have seen a public response, nor would you have been able to make any of the last few public replies; but, that is just my suspicion. Perhaps you have forgotten what SIBob really said; he did not state or imply that what you posted was a TOU violation. Rather, he gave his opinion, as have others, that what you posted was cheap, immature, and appeared to speak loads about your, to use your word, morals. To be perfectly honest, those were not his exact words either, but that was my take -- at least on your initial post.
4. "Also SI charges a fee and requires detailed information when signing up."
Again, so what? AOL requires detailed information when signing up, more than SI, and also charges a fee, more than SI. Just what relevance do the information collected or the fee charged have to do with anything in § 230. Nothing in § 230 makes any distinction based on the kind of information collected or the fee.
5. "They are in a different category."
Not based on anything you have suggested.
You speak of § 230 protecting discretion and then point out that SI has the exact kind of discretion that the law protects -- just what in that discretion makes the exercise or refusal to exercise that discretion actionable?
SI could remove any post it wanted for any reason or no reason -- but that has nothing to do with either your point or mine. The issue is not whether they "could" but rather are whether they "should," whether it is reasonable to expect them to do so, and whether they could be liable for failing to do so. Whether they should remove a post based merely on someone's allegation that it is illegal may be subject to an opinion, even if it is an unreasonable one, but whether it is reasonable to expect them to do so and whether they could be liable are not subjects of opinion.
If SI removed a post or took action against a poster any time anyone alleged that it was "illegal," SI, likely, would no longer have much of a business. Hey, what a great way to silence everyone who has an opinion different from yours: create a system where their posts must be removed and they must be suspended any time anyone claims that what they said was illegal. Of course, if both sides of an argument make the claim, then they both get suspended or terminated and both posts get removed, and guess what, there is no SI left. Not a very good business model and precisely why it is not reasonable to expect SI to remove posts any time someone alleges that the content is illegal. It is also precisely why the law provides liability protection.
That said, you have still never addressed the basic issue of how SI would monitor posts the way you want in any kind of reasonable manner. Should they just delete every post any time someone screams that a post is "illegal?" Surely, you see the folly in that approach. Should they have a staff of lawyers to make such a determination and if so, just where is all of that money going to come from to pay the dozens, if not hundreds, of lawyers that it would take to do so? What happens when the lawyers disagree? Oh, I know, they should just hire more lawyers; or maybe put a judge or two on staff. Right? I suspect that neither you, nor 99% of other SI posters, really want that.
Finally, you state: "I think a good attorney could get around 230 here."
No, a good attorney would not even try -- at least not based on any of the arguments you have made. The kind of attorney you could or would get to try, and some may, are the kind that would get you and themselves sanctioned for filing a frivolous lawsuit. Based on the positions you have taken, it would be more than appropriate.
Troy |
