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March 7, 2018

Lesson 7: Freedom of the Press – Publishers and Blogs Can’t Be Sued for Commenters’ Statements

Can publishers which disseminate statements made by others be sued for libel? The answer, derived from Anglo-American common law, is yes. The landmark case of New York Times v. Sullivan (1964), in which the Supreme Court set terms and conditions under which newspapers could be held liable for comments about public figures, was a suit challenging as libelous statements made in an advertisement in that newspaper, not in an article produced by the Times. It is a common practice of newspapers and magazines to have lawyers examine the texts of proposed advertisements, to protect publications against libel suits.

But publishers of material over the Internet are not liable for statements made by commenters on their blogs. Section 230 of the Communications Decency Act, sponsored by Representatives Christopher Cox and Ron Wyden, and passed in 1996, 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.” As law professor and proprietor of the popular Instapundit.com website Glenn Reynolds writes, “As a result, libelous matter contained in comments posted on blogs by their readers, or emailed to bloggers and subsequently reprinted, cannot give rise to a libel action against the blogger—though of course, the original source enjoys no such immunity.”

Section 230 reflected a view that proliferation of information, even possibly inaccurate or libelous information, and freedom of expression are to be encouraged. Bloggers, unlike established newspapers or magazines, are not likely to be capable of vetting the potentially infinite number of comments that can be made on the Internet, and so the possibility of liability would choke off expression. Readers can point out errors and speedy corrections can be made and linked to the original erroneous comment.

In contrast, libel actions are at best a cumbersome means of correcting Internet content. Most bloggers do not have deep pockets and are thus not likely targets of lawsuits, and most comments are about public figures, for whom successful libel actions are difficult under New York Times v. Sullivan. Indeed, one could argue that anyone people choose to write about is by that very fact a public figure.

Of course, Congress could repeal Section 230, though at this writing there does not appear to be any significant moves in that direction.

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March 7, 2018