I posted recently in the forums that I often receive phone calls from angry people threatening to sue me for defamation because of something someone posted in the forums about their company.  Today was one of those days.  I explained that our forums are unmoderated and we do not remove forum posts.  I was told that the matter was being referred to their attorney.  

Thus, it seemed like a good idea to explain my position on our potential liability for the things our users post.  My position - we are not responsible for content submitted by third-parties. 

I think we are on pretty solid footing in this instance.  In 1996, Congress passed the Communications Decency Act (the "CDA").  The CDA provides 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." 

Source of Title is an "interactive computer service," which is defined as "a service... that provides or enables computer access by multiple users to a computer server..."  And our users who post comments are "information content providers," which is defined as "any person... that is responsible, in whole or in part, for the creation or development of information provided through the Internet..." 

According to our long-running disclaimer on the forums, "These Message Forums are un-moderated and Source of Title does not endorse the content of any of the posts. Source of Title discourages libelous comments and you, as the sole creator of the content, take full responsibility for your remarks."

Furthermore, Congress expressly preempts contrary state or local law.  "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

The main case on this issue is Zeran v. America Online, 129 F3d 327 (4th Cir. Va. 1997).  It held that the CDA "precludes courts from from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred."

Zeran specifically argued that even if AOL was immune from suit as a "publisher," that it could still be liable as a "distributor."  The difference is that a publisher can be liable for their works even without proof that they had specific knowledge of the statement's inclusion.  Distributors, on the other hand, must have actual knowledge of the defamatory statements.  Zeran claimed that "he provided AOL with sufficient notice of the defamatory statements appearing on the company's bulletin board" to hold them liable as a distributor.  The court disagreed by finding that even if Zeran could make a case for distributor liability, it was a subset of publisher liability, which was foreclosed by the CDA.

The CDA was a recognition by Congress of the threat of tort-based lawsuits on freedom of speech in "the new and burgeoning Internet medium."  Thus, the purpose of the legislation was "to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum."

Without immunity from such lawsuits, providers of online forums would be forced to remove posts once they were put on notice that the content was defamatory without regard to whether or not it was, in fact, defamatory.  The court stated that "liability upon notice has a chilling effect on the freedom of Internet speech." 

So... it is my position that as a provider of an open Internet forum, we are immune from defamation claims for posts submitted by our users under federal law.  However, it does not mean that we could not be sued and subjected to very expensive litigation.  While I do not look forward to being sued, I am confident that we cannot ultimately be liable for our user's posts. 

I am a big fan of free speech - and the CDA.  However, I also believe that if the post is, in fact, defamatory, companies have every right to sue the person responsible for the comment.  While we are in no position to evaluate the truth of comments posted on Source of Title, I have seen a few posts that could be crossing a dangerous line.  Thus, our disclaimer is worth repeating.

DISCLAIMER: These Message Forums are un-moderated and Source of Title does not endorse the content of any of the posts. Source of Title discourages libelous comments and you, as the sole creator of the content, take full responsibility for your remarks.

Remember, once you post in our forums there is a permanent record of your comments.  You should not post anything "in the heat of the moment."  Give it careful consideration and make sure that your anger isn't getting the best of you and don't open yourself up to a defamation suit.

Freedom of speech comes with responsibility - let's not forget that.

Robert A. Franco
SOURCE OF TITLE