Jonathan Bick, New Jersey Law Journal   April 7, 2016   

Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of "101 Things You Need to Know About Internet Law" (Random House 2000).

Internet defamation is a regular occurrence. While the common law affords e-defamation victims a right to sue both the original speaker of the defamatory statements and the publisher, Internet anonymity of the original speaker and the publisher's use of Section 230 of the Communications Decency Act of 1996 (CDA) often make such litigation difficult. However, the CDA also provides a basis for combating Internet defamation. In particular, the CDA allows plaintiffs to definitively identify actions that make Internet publishers liable.

Typical Internet site protocol, such as a terms of use agreement, generally gives rise to promissory estoppel and thereby a basis for action against both the defamer and the defamer's publisher. Disparaging another's reputation using the Internet is just as defamatory as slanderous speech or libelous content. E-defamation is subject to the same legal ramifications under common law as traditional defamation. A plaintiff must plead and prove the same elements of defamation in either case to prevail.

Since the Dendrite court (Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001)) required a rather high threshold to be met in order to compel Internet service providers to disclose the defamer's identifying information, it is generally easier for a defamed party to start proceedings against the publisher of the Internet defamation. Even if the plaintiff is able to compel the Internet publisher to disclose such information, it is generally in the form of an Internet Protocol address, which may not be sufficient to identify the defamer due to the use of shared IP Internet Protocol addresses resulting from the common use of public Internet access, such as Wi-Fi hotspots.

"Section 230" refers to Section 230 of Title 47 of the United States Code (47 U.S.C. §230). While much of the CDA was found to be unconstitutional restrictions of freedom of speech and struck down by the Supreme Court, Section 230 survived. It continues to be a valuable defense for Internet intermediaries. While some point to , where a court barred a plaintiff's otherwise legitimate claim because the only available defendant held immunity under Section 230 of the CDA as bestowing on Internet service providers a nearly complete immunity from claims arising out of their Internet users' activities, such is not the case. However, Section 230 only applies to interactive computer service providers, not to information content providers.

In particular, Section 230 states 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." This federal law pre-empts any state laws to the contrary, and thus no cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section. Thus, Section 230 does not protect Internet service providers that both pass along content, as applies to interactive computer service providers, and add their own content as information content providers.

Consider Anthony v. Yahoo!, 421 F.Supp.2d 1257 (N.D.Cal. 2006), where an Internet publisher of a Yahoo!-related dating site generated false profiles and emailed current users' profiles of people who were no longer subscribers. The court found that while the defendant provided Section 230 immune interactive computer service, it also provided its own content and became an information content provider.

More specifically, a user of Yahoo!'s online dating services sued Yahoo! for fraud and negligent misrepresentation after discovering that Yahoo! generated false profiles and sent users now-defunct profiles in order to entice them to re-subscribe. The court found that Section 230 did not apply to content that an interactive service provider "developed or created entirely by itself," nor to sending users now-defunct profiles, because the resulting claims arose from Yahoo!'s fraudulent presentation of the content of the profiles, rather than the sending of the content.

Courts have held that Section 230 is applicable to Internet service providers that exercise the traditional prerogative of publishers to edit the material prior to publication. But Internet service providers are responsible for commentary content and content added due to editing. For example, if you edit the statement, "John, a kosher butcher sells no pork" to remove the words "no," a court will find that a sufficient contribution to the content, so as to make the editor liable. Similarly, providing a defamatory comment via a hyperlink, will result in a finding of the Internet service provider as an information content provider rather than an immune interactive computer service providers.

A bright-line test exists between acceptable editing and being an information content provider: Liability for new information springs into existence when edits or comments change the meaning of the information. While Section 230 protects interactive computer service providers from lawsuits arising out of third-party content, the third-party individuals themselves remain completely liable and subject to litigation. Section 230 provides another basis for defamed parties to proceed against Internet publishers. Specifically, if the Internet publisher adds content or fails to remove content as promised which results in misleading or fraudulent interpretation of defamatory content, the basis for a defamation claim is created.

The court in Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir. 2009), found that the publisher's role in failing to remove third-party content would make the Internet publisher liable for the defamatory remarks of a third party. In short, Yahoo!'s failure to remove offensive content was actionable and not immune to Section 230 activity.The court in this case found that Yahoo!'s failure to take down a false profile of the plaintiff, even after a company employee assured her that it would be removed, resulted in promissory estoppel. The plaintiff successfully held Yahoo! liable "as the counter-party to a contract" and found that Section 230 would not bar a promissory estoppel claim because of Yahoo!'s promise to remove material from the Yahoo! Internet site.

This result (i.e., a contract claim overcoming Section 230 immunity) is particularly useful for taking action against Internet publishers of defamatory content, when said Internet publishers have terms of use agreements associated with their sites which state that defamatory content will be removed.Such terms of use agreements will result in contract liability which is independent from publishing conduct liability. An Internet publisher's manifest intention to remove defamatory content gives rise to a legal obligation to do so. Contract law treats the outwardly manifested intention to create an expectation on the part of another as a legally significant event. That event generates a legal duty distinct for an Internet publisher.

Failure to follow the agreement's rules normally results in termination of the user's access to the site, removal of the user's content and other remedies. One such remedy is the Internet publisher's disclosure of the information associated with the defamer.