under Cubby’s rule, Internet services
would have routinely received takedown notices claiming third-party content was defamatory, and the services
would have honored the notices regardless of their legitimacy. Indeed, we have
seen analogous problems with the Digital Millennium Copyright Act’s notice-and-takedown scheme for claiming
that users infringed copyright.
A 1995 decision, Stratton Oakmont
v. Prodigy, delivered even worse news
to the Internet industry. Prodigy advertised itself as a “family-friendly”
service. It operated popular message
boards. A user posted messages that
allegedly defamed the plaintiff (the investment bank unfavorably portrayed
in the 2013 movie Wolf of Wall Street).
The court said that Prodigy was the
legally responsible publisher of user-submitted posts because Prodigy had
removed other user postings from its
message boards and touted itself as
The Stratton Oakmont decision created a paradox called the “
Moderator’s Dilemma.” According to Stratton
THE INTERNET’S FREEDOM to code is in jeopardy. In 1996, Congress enacted 47 U.S.C. § 230(“Section230”), whichsays Internet services are not liable
for third-party content in many cases.
In practice, for over two decades, Section 230 has legally immunized coders’
decisions about how to gather, organize, and publish third-party content.
Section 230 has become a political
target by all sides, but reforming it will
impair coding freedom. In this Law
and Technology column, I explain how
Section 230 came into existence, the effects it has had, and why technologists
should rally behind it to preserve their
ability to build the next generation of
Section 230’s Origins and
the Moderator’s Dilemma
Two Seminal Cases. Two 1990 court rulings laid the foundation for Section
230. (For more about Section 230’s history, see Jeff Kosseff’s excellent book,
The Twenty-Six Words That Created the
Internet); see https://bit.ly/2G8ATH7.
In 1991, in Cubby v. CompuServe,
CompuServe defeated a defamation
claim for carrying a third-party publication called Rumorville. The court said
CompuServe could be liable if it knew or
should have known about the defamation. However, CompuServe lacked that
knowledge because Rumorville uploaded its content directly to CompuServe’s
servers, without any human pre-screen-ing by CompuServe, and CompuServe
had not been told about the defamation.
Despite CompuServe’s win, the
Cubby ruling was not great for other online
services that publish third-party content. First, CompuServe passively hosted
Rumorville and exercised no editorial
control over it. While passive hosting
might work for some professionally produced content, the rough-and-tumble
universe of user-generated content usually requires more active management.
Second, if Cubby had notified CompuServe of the alleged defamation,
CompuServe would have had to remove
the content to avoid liability. Defamation is easy to allege—and difficult for
Internet services to evaluate. Thus,
Law and Technology
and the Freedom to Code
A call to preserve the capability of developing
the next generation of Internet services.
˲ James Grimmelmann, Column Editor