Internet Service Provider Liability for Defamation: United States and United Kingdom Compared
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Since the mid-1990s, American Internet service providers (ISPs) have enjoyed immunity from liability for defamation under Section 230 of the Communications Decency Act. As Congress originally intended in 1996, Section 230 has strongly protected freedom of online speech and allowed ISPs to thrive with little fear of being sued for online users' comments. Such extraordinary statutory immunity for ISPs reflects American free-speech tradition that freedom of speech is preferred to reputation. Although the Internet landscape has changed over the past 20 years, American courts have applied Section 230 to shield ISPs almost invariably. ISPs won in 83 of 85 cases in 1997 to 2014. Nearly all types of ISPs have been held to be eligible to immunity unless they are original online speakers. Even when ISPs have operated websites that have left digital "scarlet letters" on individuals, they have not been liable if the ISPs did not "create or develop" the defamatory contents. Bloggers, as website operators, could be immunized even when they exercised the "traditional editorial functions" unlike the traditional journalists. By contrast, ISPs in the United Kingdom could not enjoy such absolute immunity. Following the U.K. tradition of plaintiff-friendly libel law, the Defamation Act 1996 did not adopt any separate provision for ISP liability. Under Section 1, ISPs in England are subject to liability for defamation by third parties if they are notified of harmful online contents but fail to remove the postings promptly. Meanwhile, the new Defamation Act 2013 provides a separate provision for ISP liability. Section 5 is novel because ISP liability hinges on whether the original speaker is identifiable. I suggest that CDA Section 230 should be revised. One possible way of revising Section 230 is borrowing from the U.K. Defamation Act 2013. But such adoption is not compellingly urgent. It needs time to see what impact the new U.K. defamation law will have on freedom of speech. Regardless, the U.K. experience with ISP liability will provide a useful comparative framework to rebalance free speech with reputation on the Internet.