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First Page

1505

Abstract

Libel, an ancient tort, protects one's reputation in a community. Historically, libel damages were presumed because of the tort 's potential to cause permanent reputational harm. Today, the likelihood of such reputational harm is increased exponentially by the prevalence of the Internet, where billions of pages of information are accessible to more than two billion people. When libel occurs on the Internet, why should the law favor the interests of internet service providers (ISPs) over the interests of the libeled? In applying § 230 of the Communications Decency Act (CDA) to defamation claims against ISPs arising from defamatory statements on ISP sites, the overwhelming majority of courts follow the lead of the United States Court of Appeals for the Fourth Circuit and decline to hold ISPs accountable for the tort of libel, along with other civil and criminal claims. This overly broad interpretation of§ 230 essentially renders a well-established cause of action a nullity. Why should a statute designed to protect ISPs from liability for blocking or restricting access to pornography or other objectionable materials be construed to bar defamation claims, even when the ISPs have not engaged in conduct to limit access to offensive materials?

This Article argues that courts should adopt a narrower interpretation of § 230 to allow a remedy for defamation. Alternatively, it argues that Congress should adopt the DMCA as a model in revising § 230 by incorporating notice and take-down provisions. Such notice and take-down provisions would permit state common law defamation claims against ISPs, assuming the ISPs had actual or constructive knowledge of the defamatory content and failed to remove it within a statutorily mandated time period. Distributor or secondary publisher liability based on actual or constructive knowledge is consistent with traditional defamation law.

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Link to publisher version (DOI)

http://dx.doi.org/10.15779/Z38GG3D