While hard cases often make bad law, occasionally they also make good law, often by accident. And few cases are harder or made better law than Zeran v. America Online, Inc.(4th Cir. 1997), in which the court held that §230 of the Communications Decency Act of 1996 (CDA) exempts internet service providers (ISPs) from liability for statements made by third parties.
Many commentators believe Zeran “saved the internet” by enabling ISPs to permit unfiltered speech. But others argue Zeran misinterpreted §230, which was intended to encourage ISPs to filter speech. I think Zeran reached the right result, whatever Congress intended §230 to accomplish, because AOL wasn’t liable under the common law rule, either.
Both fans and foes of Zeran assume that its interpretation of §230 changed the scope of liability for ISPs under the common law republication rule. I’m not so sure. While §230 requires courts to use different words than the common law rule, the Zeran interpretation of §230 produces essentially the same results as the common law rule, properly applied.
The Common Law of Libel & the Republication Rule
Under the common law, a person who publishes a false and defamatory statement is liable for libel. The First Amendment sets a standard of fault of “actual malice” for statements about “public figures” and “negligence” for statements of “public concern” about “private figures.” And the “republication rule” provides that a person who knowingly or recklessly disseminates a libelous statement attributed to a third party is also liable for libel. Under the republication rule, “publishers” (e.g., newspapers) are liable because they necessarily know the content of a statement they publish, “distributors” (e.g., newsstands) are liable only if they know or should have known about the libelous content of a statement they distribute, and “conduits” (e.g., mail carriers) are not liable because they cannot know the content of a statement they deliver.
The Road to Zeran
Initially, courts simply applied the republication rule to libel claims against ISPs acting as intermediaries. Some courts held that ISPs were “distributors,” because they did not exercise editorial control over third-party statements. But in Stratton Oakmont v. Prodigy (N.Y. Sup. 1995), a New York trial court held that an ISP was a “publisher,” because it exercised some editorial control over third-party statements posted to a “bulletin board.” Congress enacted §230 explicitly in order to overrule Stratton Oakmont, providing that an ISP is not the “publisher” of “any information provided by another information content provider,” even if it filters that information.
In 1995, an anonymous AOL subscriber purporting to be Kenneth Zeran advertised offensive T-shirts on an AOL bulletin board. Zeran asked AOL to remove the posts, and it complied. But in 1996, Zeran filed a libel action against AOL, arguing that it was liable as a distributor because it knew about the defamatory posts. The district court granted AOL’s motion to dismiss on the pleadings and the 4th Circuit affirmed, holding that §230 exempted AOL from liability for all statements made by third parties.
The Zeran court explained that under the republication rule, anyone who disseminates a libelous statement is a “publisher” of that statement:
The simple fact of notice surely cannot transform one from an original publisher to a distributor in the eyes of the law. To the contrary, once a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher.
The court also observed that treating ISPs as “distributors” would impose potential notice-based liability, and create “a natural incentive simply to remove messages upon notification, whether the contents were defamatory or not,” thereby chilling speech.
Section 230 v. the Republication Rule
Zeran encouraged the development of social media by enabling ISPs to refrain from filtering speech, without fear of liability. But critics argued that it interpreted §230 too broadly, and improperly granted ISPs special protection against libel claims. The combination of §230 and Zeran certainly created a liability rule unique to ISPs. Rather than apply the republication rule, courts effectively ask whether ISPs are acting as speakers or intermediaries.
But Zeran also precluded courts from simply adapting the republication rule to ISPs. In theory, the republication rule applies to any dissemination of a libelous statement made by a third party, irrespective of the context in which it is presented. But in practice, a congeries of “privileges” and “exceptions” often preclude liability. Courts rarely find publishers liable for libelous statements attributed to a third party, unless the publisher knew or should have known the statement was false. And they are even more reluctant to find mere distributors liable.
The republication rule is sensitive to context, and the internet is just another context. A few early cases suggest that courts might have construed the republication rule favorably to ISPs. A 2010 empirical study of defamation claims against intermediaries found that §230 produced outcomes statistically similar to the common law rule. And some recent cases have exempted ISPs from liability for third-party statements without applying §230. In other words, §230 and the republication rule might have reached a similar result by slightly different paths. The medium is not the message.
While Zeran purported to invoke the republication rule, he actually asked the court to expand its scope, and the court wisely declined. The person harassing Zeran surely was liable for libel. But AOL was not, under §230 or the common law rule, because it was merely a conduit, or at most a distributor. AOL’s bulletin boards were analogous to physical bulletin boards. No reasonable person could believe that the owner of a bulletin board in a public place endorses everything posted on it, and no reasonable person could believe that AOL endorsed its bulletin board postings. Owners of public bulletin boards — whether physical or virtual — are liable for libelous postings under the republication rule only if they refuse to remove them, thereby implicitly adopting the libel as their own.
The statements falsely attributed to Zeran were libelous because distasteful, but were otherwise perfectly legal, and could have been ads for an actual business. Zeran’s complaint was that AOL didn’t prevent their posting, or remove them quickly enough. But the republication rule doesn’t attribute statements to distributors without knowledge, and doesn’t require immediate removal.
Typically, ISPs voluntarily remove libelous statements, once they become aware of them. But it is unclear whether §230 shields ISPs from injunctions to remove libelous material. Some courts have held it does, and others have held it doesn’t. Under the republication rule, ISPs would surely be liable for continuing to disseminate a third-party statement once they know it is libelous. I find it hard to believe that courts will ultimately construe §230 differently. At some point, refusal to remove a libelous statement must become an endorsement.
In addition, §230 may offer ISPs procedural advantages over the republication rule. Under §230, actions against ISPs are often dismissed on the pleadings, but under the republication rule actions often proceed to trial. This could reflect substantive differences in the facts: ISPs are typically entirely ignorant of the content of the statements they disseminate, while the ignorance of distributors of information in other media may be more qualified. But if §230 does offer procedural advantages on the same factual claims, perhaps courts ought to ask why, and consider which approach to procedure is most appropriate.
Brian L. Frye is Spears-Gilbert Associate Professor of Law at University of Kentucky College of Law, where he teaches classes in civil procedure, intellectual property, copyright, and nonprofit organizations, as well as a seminar on law and popular culture.
This essay is part of a larger collection about the impact of Zeran v. AOL curated by Eric Goldman and Jeff Kosseff.