The CDA, cyber-racketeers, the DMCA, and changes to Section 230 by Domingo Rivera

It has been quite a while since my previous post.  I have been extremely busy assisting my clients with Internet legal matters.  Internet defamation continues to affect the reputation of businesses and professionals as former customers, patients, and others who know that they do not have valid legal claims assert their false and frivolous complaints in blogs, forums and smear sites.  Even competitors are now posing as unsatisfied consumers in order to post false and defamatory statements with hopes to gain an unwarranted economic advantage.  Everyday we protect the reputation of businesses and professionals against these unlawful practices.

With the elections over, it is now time to get back to business as normal.  Speaking of the elections and politicians, many do not know that they can thank Congress for the continued proliferation of Internet defamation.  The name of the culprit law is Section 230 of the Communications Decency Act.  The purpose of this law was to allow Internet service providers to be able to alter or remove objectionable content without assuming the liability associated with a traditional publisher of content.  Congress sought to allow providers of interactive computer services to perform some editing on user-generated content without becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content.
 

Sections 230(c)(1) and 230(e)(3) provide that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,”  and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  Noble intentions behind this Congressional law, but not-so good intention behind “Internet street law” which could be read as saying “service provider, you can stand by while your services are used to ruin the reputation of good businesses and people, don’t worry, we will not hold you liable.”

This has given rise to many consumer complaints websites.  While some of these are well-intentioned and responsible, the majority are not.  The lawlessness has now sparked many websites charging fees for “investigating” consumer complaints.  Some of these websites have their employees call their targets and offer to help with the defamatory postings… for a membership fee, of course.  Some of these websites have been known to have their employees actually create the postings in an “anonymous” manner.

There are certain of these websites who charge a sliding scale fee for these memberships.  Therefore, if you are a successful business and you wish to have the false postings edited or removed, it may cost tens of thousands of dollars.  But the administrators of this scheme apparently have a kind and gentle heart.  Therefore, if you believe that their fee is not financially feasible to you, they offer you the opportunity to prove it to them and request a lower fee.  But you must provide them your private financial information first.  Are these practices any different from the mafia employee going to a store and demanding the boss’ “share” of the business earnings. Well, the threat of physical violence is now absent, but the demand is essentially the same “give us our share of your income or we will put you out of business.”  The name for this practice is racketeering.

Now, if Domingo Rivera was a politician, which by the way is a very far-fetch thought, what would he do?  Well, Congress could look close to home for a smart, practical way to amend the CDA.  There is no reason for not adopting the takedown procedures mandated under the Digital Millennium Copyright Act (DMCA).

Under the DMCA, if a copyright owner discovers that contents are posted online in violation of the copyright owner’s rights, the copyright owner has the opportunity to have the allegedly infringing web site removed from a service provider’s network, or to have access to an allegedly infringing website disabled.  To accomplish this, the copyright owner must provide notice to the service provider.  Once proper notice is given, the service provider is required to expeditiously remove, or disable access to the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

Upon receiving notice that the allegedly infringing material has been removed, the person responsible for posting the contents has an opportunity to send a counter-notice to the service provider stating that the material has been wrongly removed. If a subscriber provides a proper counter-notice, the service provider must then promptly notify the copyright owner.  If, after receiving the counter-notice, the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is required to restore the material. Additionally, under the DMCA, if it is determined that the copyright owner misrepresented the claim, the copyright holder then becomes liable to the individual who posted the contents for any damages that resulted from the improper removal of the material. 

A similar approach can be utilized for defamation claims.  Under this approach, a person discovering defamatory contents would be able to send a sworn notification to the service provider.  Upon receipt, the service provider would remove the contents or disable access to the contents.  At that time, the person posting the contents may serve a counter-notice.  If after a period of time, the defamation victim has not filed a lawsuit, then the contents could be restored.  This approach would allow for free truthful expression on the Internet while at the same time fairly providing a method that allows those defamed to protect their reputation online. 

Do I see this happening anytime soon?  Probably not (and I have no plans of running for office).  In the meantime, we will continue to devise novel strategies and techniques for protecting the reputation of Internet businesses against the cyber racketeers.

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