Internet Service Provider Immune From Defamation Suit Over Advertising Post

This case involves an Internet service provider (ISP) that had an online bulletin board that contained various advertising posts. An unknown subscriber of the ISP made several postings to the bulletin board stating that a non-subscriber was selling t-shirts making fun of and glorifying a recent terrorist bombing. The postings listed the non-subscriber’s first name and telephone number and stated that the non-subscriber was operating a home-based business selling the shirts. The non-subscriber had no knowledge about the offer. The non-subscriber was inundated with telephone complaints and death threats. The ISP’s content management division eventually removed the postings and canceled the account of the unknown subscriber. Even though the postings were taken down by the ISP, similar messages continued to appear on the ISP’s online advertising bulletin boards for several weeks. The non-subscriber sued the ISP for defamation.

Question(s) For Expert Witness

1. Can an ISP be held liable for defamation if a subscriber posts inflammatory material about a non-subscriber on a bulletin board run by the ISP?

Expert Witness Response

Defamation means the making of false statements about someone that harms the person’s reputation. The Communications Decency Act of 1996 (47 U.S.C. § 230) is a law that regulates the protections for private blocking and screening of offensive Internet material. This law was created to regulate offensive Internet content. Under this law, an ISP cannot be held liable for defamation made by third parties because the law immunizes ISP’s from suits regarding third-party users of their services. This immunity is given to ISP’s because they are not considered publishers or speakers of any information provided by another information content provider. This means that ISP’s are immune from lawsuits for defamation for exercising a publisher’s traditional editorial functions of deciding whether to publish, withdraw, or alter content. In this case, the ISP is probably not liable for defamation of the non-subscriber because the law provides immunity for such companies since they are only considered “intermediaries” for others’ potentially harmful online speech. Since it would generally be impossible for an ISP to screen each of their millions of postings on their bulletin boards for defamatory speech, ISP’s are given immunity against these types of lawsuits. Because the purpose of the law is to foster free speech on the Internet, the ISP is probably immune from a defamation suit in this case.