Zeran v, America Online, Inc
Instructions:-
* Locate and analyze an appellate court case opinion (state or federal) directly related to the course objectives. See the “Think like a lawyer” framework in the Classroom for some general suggestions. (But don’t think you have to follow everything in that document; some of it doesn’t fit the assignment.)
* Explain why you chose this specific case.
* Identify and analyze the issues raised by the opinion, and discuss how the opinion relates to one or more of the course objectives. Include a discussion of the historical context of the case, and practical implications for practitioners or policymakers.
* Locate and discuss any expert commentary (e.g., law review articles) regarding the opinion and any prior or subsequent opinions or articles that relate to the opinion in question.
* Discuss any public policy issues raised by the opinion.
* State and defend your agreement or disagreement with the outcome of the opinion and defend your conclusion.
* Key issues raised by the opinion should be analyzed in depth, with detailed attention to historical context and practical implications for practitioners or implications for legislative or executive policymakers.
Note:
* You must cite your chosen case and any other cases in the proper legal citation format as we studied early in the course.
* References supporting the description or analysis must be specifically and correctly cited in accordance with APA standards. Multiple references should be used where appropriate.
* References should be specific down to a level of section or page numbers of the source, and not a URL. The accuracy and precision of citations will be graded.
* Your work product should demonstrate effective written communication and graduate level writing, and should comply with the basic formatting and citation requirements of the Publication Manual of the American Psychological Association, 5th Edition. A table of contents is optional.
Solution
Discussion of an Appellate opinion: Zeran v, America Online, Inc
Issues raised in the opinion and why the case was chosen
In the Zeran v, America Online, Inc[1], the appellate court ruled that according to the Good Samaritan exemption provision that was created by the 1996 Telecommunications act, interactive computer services such as websites are exempted from negligence claims that may be brought against them on the premise of the liability of the distributor for actions of third parties in online defamation. In a previous ruling by the lower court, the district court judge had held that the relevant section of the telecommunications act 230(c)(1) had preempted any claims that may be brought to court based on distributor liability as was ruled in Cubby, Inc. v. CompuServe Inc[2]. In his decision, the appellate court affirmed the lower court decision, broadly stating that the said section 230(c)(1) in fact creates a federal immunity from any case that would make distributors of online information be held liable for the actions of third party users of their services. The appellate judge observed that the congressional intent in the above section was to promote free speech.
While this case was determined decades ago, it could not have been more relevant, especially in the modern world where there is the proliferation of the internet and media. Interactive computer services such as websites, mobile applications such as Facebook, Twitter, Instagram, etc. have made it easy for information to be accessed, even disseminated at the click of a button. The tragedy that the world faces, however, is that there is little regulation on what is carried by these communication media, and what impact it has on the society. Most importantly, the existing legislation is not harmonized across the world and due to the ease of exchange of information, it still finds its way even to the unintended audience.
Facts of the case
A short while after the 1995 Oklahoma city bombing, an unknown American Online subscriber posted some messages onto the websites bulletin board, giving Zerans name and address and even phone number in an advertisement that contained highly message that seemed to celebrate the Oklahoma city bombing and even praising the accused bomber, one Timothy McVeigh. Zeran would learn about the offending advertisement when one of the AOL reporters called him on the day it appeared (April 25, 1995). He immediately called AOL who promised to remove the offending advert. Even after the removal of the original advert, another one appeared later in the day prompting Zeran to again call AON who subsequently removed the second advertisement and even promised to terminate the account of the pseudo-subscriber. Despite these assurances, subsequent messages kept on appearing for the greater part late April through May 1st. This message was even picked up by a radio Disk Jockey from a city radio station, advising his listeners to call him to complain about the offending message. Zeran contends that he received many offensive and even angry calls, sometimes in intervals of two minutes. At AOL’s suggestion, Zeran contacted the FBI and was given police protection.
When the Telecommunications act of 1996 was enacted in April, Zeran filed a suit against AOL. He alleged that AOL had acted negligently in their failure to respond adequately to the offending notices even after being notified of their fraudulent and offending nature. He also argued that AOL had a legal duty to desist from the distribution of material that, it knew or ought to have known was defamatory. In his appeal, Zeran argued that AOL unreasonably delayed removal of the defamatory messages from their online bulletin or even screen similar messages from their posts.
The opinion raised some pertinent issues. Both the District and appellate judges noted that Zeran’s claim was founded on state distributors liability which was preempted since the imposition of such liability on AOL would be treating it as a ‘speaker or publisher’, while in reality, they were not the originators of the message, but rather distributors. The Fourth Circuit also found that liability under the ‘reason to know ‘standard as set in Cubby, Inc. v. CompuServe Inc that was imposed on book stores, news vendors, and even libraries which would be charged if they distributed information that they knew or ought to have known was defamatory- was deemed to be equivalent to ‘speaker or publisher’ form of liability. In subpart 1, which Zerans relied upon in his suit, refers to speakers and publishers and not distributors. It states’ 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 exempts AOL from Liability as it was a distributor and not a publisher or speaker. Additionally, they took the relevant steps to prevent further offending messages although they still kept on appearing.
The judges also noted that the purpose intended of the Good Samaritan exemption was the promotion of free speech. He noted that the purpose for which Congress enacted section 230 was to avoid self-regulation which was created by the infamous Stratton Oakmont decision by “the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.” This, he reasoned, would promote unfettered freedom of speech online. He also noted that imposing liability on service providers for interactive communication posted by third parties would be tantamount to another form of intrusive federal regulation of speech, which is against the tenets of the Constitution and also against the intent of the section which was enacted in order to ‘maintain a robust communication and also to minimize federal and state interference in the communication medium.
Expert commentary regarding the opinion
In an article published in the Journal of Internet Law[3], the author sought to differ with the decision of the appellate judge on all the grounds presented. He noted that the lower court’s decision was rested on two grounds. First, the district judge concluded that the ‘speaker or publisher’ encompasses distributors who include AOL. Secondly, the court determined that the intent of Congress in passing this act would be undermined if the distributor liability was not exempted. The Fourth Circuit court, according to the author, went beyond the statute or even legislative history in finding that the intent of the congress in passing the act was to broaden the freedoms of speech, which according to the author, contravenes provisions of the Communications Decency Act, which encourages the screening and even blocking of some adult or offending content.
The author, therefore, contents that the rule of Zeran v. America Online, Inc. was wrong all the grounds relied upon on the Fourth Circuit. In the first instance, while the term ‘publisher’ is not defined in the statute, Congress was concerned about the liability of publishers as was the case in Stratton Oakmont v. Prodigy Service, Inc, a case in which the judge expressly drew the parallel between publisher and distributor. Secondly, construction of section 230 to allow distributor liability would further the promotion of screening of online content would not be undermined but rather furthered an issue that was ignored by the Fourth Circuit. Lastly, the author notes that the conclusion of the Fourth Circuit that Congress’ intention was to ‘promote unfettered free speech on the internet’[4] by passing the Communications Decency Act was not valid. In his view, the author notes that the intention of Congress in some instances, a service provider may be held liable for defamatory acts by third parties if they actually knew or ought to have known that such material was defamatory and have failed to take the necessary actions.
Publisher or speaker
According to this article, section 230 discusses publishers or speakers and not distributors, which raises the question of whether the intention of congress was to substitute publisher and distributor. The legislative history of section 230 speaks specifically of Stratton Oakmont v. Prodigy, in which unlike the case of Zeran, the defendant was deemed to be a publisher and not merely a distributor. This bears no legislative history to Cubby. The author argues that if Congress had intendedto limit providers of online content from liability of distributors or even liability of republication, it would have gone beyond the case of Stratton Oakmont v. Prodigy[5] .In Cubby, for instance, the court decided that providers of online content who do not monitor their content would be liable to distributor liability, which means that under the Zeran case, the failure to monitor their online content predisposed them to liability under the cubby test.
Promotion of free speech
The author notes that the Fourth Circuit assertion on the promotion of free speech was tenuous at best. The reasoning that imposing liability on distributors of online content for defamatory messages posted by their subscribers is the curtailment of free speech is in contrast with the provisions of the Communications Decency Act. In fact, the author explains that section 230 is entitled Protection for Private Blocking and Screening of Offensive Material,”[6] and even makes no reference to freedom of speech. The judge, therefore erred in his interpretation of the said act, especially with the intention of Congress since in the same bill, the Communications Decency Act sought regulation to limit online speech to the extent that it was ‘indecent or offensive’. This, according to the author, is a clear indication that AOL was not entirely immune from liability by their mere status as distributors.
Additionally, the court’s argument that distributor liability would expose distributors to potential liability each time they received a notice of potential defamatory statement, leading them to censor speech is not valid. This is because, as the author argues, liability would not arise from non-publishing of such defamatory material. The distributor would still avoid liability by not publishing such defamatory material until it’s determined to be fit for publication as was the case in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, . . . (1986)
Legislative intent
While the Fourth Circuit judge argued that the intention of congress of providing immunity to distributors was to promote free speech by removing the burden of monitoring and litigation, the author finds this to be a simplistic argument, even a misapplication of legislative intent. The judge had argued that distributor liability would discourage distributors from monitoring content, or even requesting for customer complaints for fear that they would be held liable to have ‘reason to know’ of the defamatory nature of their subscribers online content. This is however not the case, as the author points out. According to section 230, subpart (2), and interactive computer services providers are immunized from liability in regard to “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers being . . . objectionable’. Thus, service providers would not be brought to account for their effort to screen such material.
The author, while agreeing with the final result of the fourth circuit decision, he notes that the wrong reasons supported that decision. He notes that AOL in its response to Zerans complaints had acted reasonably by removing all offending posts within a reasonable period of their publication in their online bulletin and were therefore entitled to a judgement in their favor that should have been based on subpart (2) and not subpart (1) of the Good Samaritans section. Secondly, since they acted in good time to the complaints of the plaintiff, AOL could be exempt
Public policy issues raised by the opinion
As discussed above, the case raises various public policy issues, among them freedom of speech, responsible use of technology and liability of distributors of interactive computer services such as websites and other online services. Freedom of speech, as enshrined in the Constitution is a fundamental right enjoyed by all American citizens regardless of their race, religion, color or station in life. This right, however, must be enjoyed responsibly, and according to the Communications Decency Act, providers of online interactive services have a responsibility to monitor, screen and even block content that is deemed to be offensive, in breach of copyrights or objectionable. While the enactment and enforcement of the provisions of this act are in some cases deemed to be a curtailment of the freedom of speech as envisioned in the Constitution, interpretation of congressional intent becomes key in making a determination on the application of these acts.
The liability of various players in the production, publication, and distribution of public information through electronic means comes out strongly in the opinion. The definition and distinguishing between publisher, speaker and distributor and their liability for online content is a key public policy issue. The opinion clearly indicates that speakers or publishers as envisioned in section 230 are liable for defamation suits brought against them while distributors are immune to any legal issues that may arise due to their published content authored by third parties. However, subsequent acts of congress such as the communications decency act places responsibility on online service providers to screen and weed out any content that would be deemed to be indecent.
The most intriguing outcome of the Zeran vs AOL ruling, however, is that in effect, it immunizes service providers and online content developers who take no action in the restriction of online content and even disregard complaints that are legitimate concerning online content published on their platforms. This has the effect of discouraging internet providers from responsible behavior and actions, which effectively undermines the congressional intent of promoting screening and blocking of objectionable online content.
Conclusion
As far as the final decision to the case goes, I agree with the Fourth Circuit judge. AOL acted fast, and in good faith to remove all offending content from its online bulletin and even advised Zeran to report the matter to the authorities. On the issue of immunity of distributors, I am in agreement with the Judge that they should not be held accountable for the defamatory or potentially defamatory statements made by third party contributors. However, I disagree with the judge’s assertion that such online interactive service providers have no responsibility whatsoever for vetting content that is posted on their platforms. This is because it contravenes the provisions of section 230 which demands the continuous screening and blocking of objectionable content from their platforms. This is also provided for, in the Communications Decency Act. The judge’s argument that such screening and blocking would be a reversal of the gains made towards free online speech also contravenes the above-mentioned act. Lastly, his argument that screening and monitoring of online content would increase litigation for the service providers is also against the provisions of subpart (2) which avoid liability for those that act “in good faith to restrict access to or availability of material that the provider or user considers to be . . . objectionable[7].”
References
The Telecommunications Act of 1996, 47 U.S.C. ‘ 230 (c)(1).
47 U.S.C. ‘ 230(c)(2)
47 U.S.C. ‘ 230(c)(1).
Conference Report 104-458, 104th Cong. 2d Sess. 194 (1996)
Zeran v. America Online, Inc., 958 F. Supp. 1124, 1134 (E.D. Va) aff’d, 129 F.3d 327 (4th Cir. 1997)
Zeran v. AOL: Why the Fourth Circuit is Wrong Journal of Internet Law, March 1998 available at: http://corporate.findlaw.com/law-library/zeran-v-AOL-why-the-fourth-circuit-is-wrong.html
Stratton Oakmont, Inc. v. Prodigy Services Co.
The Telecommunications Act of 1996, 47 U.S.C. ‘ 230 (c)(1).
Cubby, Inc. v.
CompuServe Inc
[1] Zeran v. America Online, Inc., 958 F. Supp. 1124, 1134 (E.D. Va) aff’d, 129 F.3d 327 (4th Cir. 1997)
[2] Zeran v. AOL: Why the Fourth Circuit is Wrong Journal of Internet Law, March 1998 available at http://corporate.findlaw.com/law-library/zeran-v-AOL-why-the-fourth-circuit-is-wrong.html
[3] Zeran v. AOL: Why the Fourth Circuit is Wrong Journal of Internet Law, March 1998 available at http://corporate.findlaw.com/law-library/zeran-v-AOL-why-the-fourth-circuit-is-wrong.html
[4] 47 U.S.C. ‘ 230(c)(2)
[5] Stratton Oakmont, Inc. v. Prodigy Services Co.
[6] 47 U.S.C. ‘ 230(c)(1).
[7] 47 U.S.C. ‘ 230(c)(2)
