Interactive Web Sites Get New Protection from Lawsuits

It was bound to happen. You’ve read those customer book reviews on Amazon.com, haven’t you? One of those users was going to defame an author sooner or later. It has probably happened more than once. Jerome Schneider, author of several books on taxation and asset protection, said he had been defamed when a user called him a felon and made other negative remarks.

Amazon.com exerts no control over these reviews, but asks its readers to follow a handful of rules when they write their comments about a particular book. One of the rules is to "refrain from including. . . comments focused solely on the author." Schneider sued Amazon based first on the allegedly defamatory book review and then on their failure to remove the review when they said they would.

The Court of Appeals of the State of Washington ruled in September that the federal Communications Decency Act of 1996, Section 230, protects Amazon from liability and dismissed the case. Section 230 says that Internet Service Providers (ISP) cannot be held liable for content created by a third party.

It also allows the ISP to write rules and to take "Good Samaritan" steps to protect against the publication of offensive material. However, in the five years since its enactment, all decisions have involved Web sites that provide the user with access to the Internet, such as AOL.

This court ruled that an interactive Web site, even if it does not provide Internet access, is protected. Though it is a state court, the ruling interprets federal law also applicable to Maryland, D.C. and Delaware Web site publishers.

There are several good points to know:

Again, the headline is that the Washington Court of Appeals held that the interactive Web site was protected even though Amazon.com does not give the user access to the Internet. Schneider argued that Section 230 did not apply.

The court said it is enough that the Amazon site provides "an information service that necessarily enables access by multiple users to a server." This means that all of your Web sites that allow feedback from readers qualify for protection under Section 230.

Section 230 says that neither Amazon’s "rules," nor the power it retains to edit or reject material, are enough to create editorial responsibility for the offending content. Normally, a publisher, unlike a telephone operator or library, is held responsible for any material that it publishes, especially when the plaintiff can show that the publisher had the power to change the offending material. The Washington court said that Congress had made kind of a deal with the interactive service provider community. The law protects the service provider against liability for exercising editorial control in exchange for efforts to self-police for obscenity and other offensive material.

The plaintiff’s last argument was that Amazon.com should be liable to him for breaking the promise it made to take the alleged defamation off its Web site. But this court said that would violate the intent of Section 230 because the decision not to remove the material was an editorial decision, which Section 230 was intended to protect. The law says that no claim can be brought under state law that is inconsistent with Section 230. This court excluded breach of contract lawsuits as well as tort claims.

The decision makes it very difficult for a plaintiff to hold the interactive Web site operator liable for any content posted by someone else, or to require the Web site operator to take any particular action following complaints about third party content. Though the decision makes rulings that are new, it does not appear to go beyond the intent of Congress in writing Section 230.