A Slanderous Thing Happened on the Way to the Forum
As we all know, Section 230(3) of the Communications Decency Act of 1996 made it so that websites couldn’t be sued for hosting user comments and submissions in the same way they could if they were hosting their own original material. This made sense at the time for a variety of reasons. A website couldn’t be expected to monitor and filter every incoming post. Additionally, if you found the website accountable for material posted by a third party because the website made some effort to filter out objectionable material, it would discourage websites from making any effort to filter at all. However, what this legislation and the thinking around it failed to predict was the emergence of websites that existed solely to spread gossip and other malicious postings. While there are sites and forums that host a combination of both useful and derogatory messages, there have emerged sites since the original legislation that prosper solely by providing an unfettered forum to such messages. Sites like AutoAdmit, CollegeACB, and others are able to thrive simply because they promote gossip and unsubstantiated rumors.
In Stratton Oakmont, Inc V. Prodigy Services Co. the court ruled that Prodigy was liable for postings made on the website because it acted in an editorial role by attempting to remove some messages. The controversy caused by this decision lead to the passage of Section 230(c) granting the provider of an internet service immunity if the information was “provided by another information content provider.” This seemed logical because companies like Prodigy weren’t dependent on their reputation as a website for defamatory information or postings. In contrast, sites like AutoAdmit, CollegeACB, and Juicy Campus essentially advertised themselves as a place to post and read defamation. They essentially take Section 230(c) as carte blanche to provide the atmosphere for harmful behavior without providing any of it themselves, thus rendering themselves immune.
To me, these sites have a strong parallel to Napster, Kazaa, etc — their entire appeal is derived from the fact that they let users submit and share content that is essentially illegal. Had either Napster or AutoAdmit originally committed the copyright infringement or written the slander instead of merely providing an avenue to do so, it would have been obvious that they should be found legally responsible. However, because they’re simply the conduit by which illegal material is disseminated, a much grayer area emerges. Much like Kazaa, where a vast majority of files were found to be copyrighted and thus illegal to share, gossip sites rely on slanderous rumor and gossip to be successful. They advertise themselves as places where illegal activity is encouraged, but gossip sites still hold immunity because of the provisions of Section 230(c).
An interesting parallel between the two types of sites can be found in the way they evolved. After Napster was shut down, Kazaa sought to fill the void. Kazaa bought ads so that when someone searched for “Napster Replacement” or similar terms, they were brought to the Kazaa download site. In this case, these actions were considered “Inducement to Copyright Infringement.” Somewhat similarly, after JuicyCampus closed, the founders of College ACB made a deal with the founders of JuicyCampus to redirect traffic from Juicy to College. Why is this not considered “Inducement to Defamation” or “Inducement to Libel?” Peter Frank, CollegeACB’s founder, was clearly trying to mimic the success of Matt Ivester, JuicyCampus’s founder.
Obviously, there is a distinction between gossip sites and P2P sharing sites. P2P sites are much easier to prosecute because either something is copyrighted or its not; there’s not the same gray area of whether or not the law has been broken as there is with the harder to define the crime of libel. However, the way that gossip sites solicit, encourage, and depend on defamation draws inarguable parallels with P2P sites and copyright infringement. However, unlike the artists whose music was being pirated, those slandered on gossip sites have no huge corporations looking out for their interests. There’s no Brittan Heller & Heide Iravani Industry Association of America to sue these websites and push for legislation when someone gets called a whore.
Adapting to an Anonymous World
One of the things that makes the internet so susceptible to slander and defamatory remarks is the idea of anonymity. Its obvious that people feel emboldened when they’re online to post things to a public forum that they’d never go around shouting in the dining hall. The end result of this is that there’s a lot of outpouring of hateful and spiteful messages that don’t exist with the same frequency or regularity that they do outside of cyberspace. This breeds a more malicious culture with a more harmful nature.
However, with this heightened tendency to post derogatory and embellished things comes a heightened degree of skepticism from the part of the readers. Just because I read about a girls lascivious nature online doesn’t mean I’m going to believe it. Just like if you heard your school’s big gossip, with a tendency towards making things up, say something about someone doesn’t mean you’d believe them. You learn to take everything on the internet, but especially those posted from anonymous sources, with a Roman legion’s annual salary worth of salt.
Attributing Quotes to Anonymous and Unintended Consequences
While posters may be emboldened by their online anonymity, they generally overlook a simple fact: they’re not actually anonymous. Levels can be taken to secure one’s identity when posting online. A combination of technology, proxy servers, and browsers like Tor make online posting significantly more anonymous. But the thing is, even ignoring the fact that these technologies usually won’t make users completely anonymous, most users don’t bother with these precautions anyway.
There’s something unsettling about the internet. Without directly interacting with another human being, without speaking a single syllable or putting a single word on a tangible piece of paper, from the comfort and solitude of one’s own home, we can still spread our opinions or rants to the entire audience of the internet. But people don’t take the time to think about how clicking submit on a website will immediately and permanently put their thoughts or slander out into the world.
Posters are emboldened to post things they wouldn’t say because posting online doesn’t seem like it could have the same ramifications as saying something or writing something in the real world. However, as the litany of litigation bringing libel charges against “anonymous” users in the past few years has demonstrated, there can still be serious consequences to online postings. These lawsuits make sense, people are committing acts of defamation quite maliciously. If someone makes claims that you cheated on every test or that your accolades were undeserved, potential employers may question your character. This brings up an interesting distinction between real world gossip and that which appears online. Whereas college campus used to be confined to the campus, it is now out there for anyone to see. Someone may post something malicious as part of a petty fight meant solely to be read by the poster’s classmates. But these posts are accessible to anyone — parents, school administrators, and perhaps most worrisome (to Yale kids anyway) future employers. However, as I pointed out in the previous section, people generally don’t things posted on the internet, anonymously, as seriously as they would claims from a credible source. In this way, it would seem that online libel poses a threat, but not to the same extent as defamation in the physical world.
However, the fact that people can be prosecuted for things they post “anonymously” online does bring worries about the extent to which the government can uncover information about a poster. Something posted online doesn’t necessarily reflect a person’s mindset, beliefs, or their intentions. In the case of Heller and Iravani, AutoAdmit posts about raping one of the women probably didn’t indicate any actual intent to commit rape. These posts were disgusting, vile, and clearly unacceptable, but shouldn’t be taken at face value. These posts are certainly threatening, but they don’t constitute a threat in the sense that the poster had the determination or intention of committing the act. Should they be punishable? Probably. Do they deserve the same scrutiny as other threats? Probably not.
It is in the previous example that we see a problem with the government being able to know exactly who posted everything. In the case of Watts v. United States, the Court addressed hyperbolic threats made against President Johnson. In that case, the defendant jokingly made a remark insinuating he would kill the President, after which he looked down the barrel of an imaginary rifle. The comment was met with applause and laughter and didn’t constitute a serious plan to assassinate LBJ. It was within this context that the Court was able to decide that Watts didn’t actually intend to kill the President. The Court explicitly said “taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.” The Court ruled that hyperbolic threats against the President needed to be differentiated from legitimate threats. Online, it can be extremely difficult to understand the context of comments and things can easily be taken more or less seriously than they should. The reactions of an online audience will also differ drastically from the reactions of a physical audience. Unlike in the physical world a comment is made to a predetermined audience with a certain, somewhat known mentality, postings online are generally made to a more unknown audience that can actually change and interact with the post after it has been said. Whereas a bunch of nutjobs won’t be able to bust into a student discussion after someone makes a joke about an assassination and then elaborate on a real plan, radical internet users could come across a joking post and then take it in an unintended direction. While federal investigations would hopefully be able to determine the nature of the comments, its an uncharted area. There’s a lot more unknown factors at play on the internet.
Let’s Wrap It Up
Essentially, what all of these issues come back to is an issue of accountability. For whatever reason, we tend to think of the internet as a place separate from the physical world. Its the same ridiculous mistake John Perry Barlow made in his A Declaration of the Independence of Cyberspace and it affects us everyday. You can claim that there’s no government to stop us or to censor us, but let’s face it, as long as you still live on this planet, there’s someone who can punish you for what you do. While many of the things that happen online may stay confined to cyberspace, there’s certainly no guarantee of such a thing. Because so much of the stuff that’s said on the internet is so inconsequential, some people might start to think there are no consequences online, but that’s obviously not the case.When you post something, it can be read, it can be discussed, and you, the physical you, not some avatar or username may have to pay the consequences.
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