Where Retweeting Falls In Defamation Law

March 7, 2019Articles Law360

In late 2018, a California woman dropped her attempt to hold MSNBC host Joy Reid liable for retweeting defamatory material to her more than 1 million Twitter followers. The original tweet contained a photo of a woman in a “Make America Great Again” hat that was accompanied by allegedly false accusations about the woman.

While the plaintiff is continuing to pursue Reid for social media posts containing content that Reid allegedly created, the since-dropped claim was particularly noteworthy because it was brought against both the original tweeter and a retweeter (Reid), even though Reid did not appear to create any of the content contained in the original tweet.

Under traditional state defamation law, a republisher of false and defamatory statements is liable to the same extent as the original publisher. That is, there is no protection simply for repeating or reprinting something spoken or written by another. Therefore, under traditional defamation law, the plaintiff almost certainly pled facts sufficient to support a defamation claim against Reid.

Why, then, was the cause of action based on Reid’s retweet voluntarily dismissed from the case before she even filed a motion? The answer lies in a statute created at the dawn of the internet age: the Communications Decency Act.[1] In 1996, Congress passed the CDA, at least in part, as a direct response to the decision in Stratton Oakmont v. Prodigy Services Co.[2] In that case, an internet service provider was found liable for defamatory statements created by unidentified posters on an internet bulletin board. As indicated above, under traditional publisher-liability maxims, a publisher of false and defamatory statements is liable regardless of whether the publisher wrote the statement. In other words, publishers were historically held strictly liable for the republication of defamatory material.

The Stratton Oakmont decision was troubling for the then-fledgling internet industry as it ostensibly held internet service providers to the same editorial and vetting standards as traditional print publishers. The sheer volume of material published through internet service providers on a daily basis — even in 1995 when Stratton Oakmont was decided — was tremendous. It did not seem possible for such a massive amount of material to be vetted the way print media was accustomed to doing. In recognition of this difference, Congress passed the CDA to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”[3]

As relevant here, Section 230(c)(1) of 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 content provider.” The breadth of this provision is in the definition of “interactive computer service,” which includes any system where multiple users can access a single server.[4] Essentially everyone on the internet is either a user or provider of “interactive computer services.” In that regard, Section 230 provides broad immunity to republishers of defamatory statements.

Like most statutes, the CDA does have exceptions. For example, Section 230 contains explicit carveouts for those who commit federal crimes or violate intellectual property laws.[5] Section 230 immunity also does not reach those who create, in whole or in part, the content found on an interactive computer service.[6]

A significant portion of litigation involving CDA immunity centers on the line between those who create content and those who merely publish content provided by others.

For example, in Fair Housing Council of San Fernando Valley v. Roommates.com,[7] a company that matched roommates through its website was found to “create content” when it required users to fill out housing forms that included discriminatory preferences. Specifically, the defendant required its users to identify protected characteristics such as gender, sexual orientation, and the presence of children in the home.

In contrast, a dating website was entitled to immunity under the CDA for claims based on a false and allegedly defamatory profile because third parties “willingly provid[ed] the essential published content.”[8]

Notwithstanding those cases, under a plain reading of the statute it is clear that retweeting falls within the confines of Section 230’s immunity. Twitter certainly qualifies as an “interactive computer service” because multiple users can access a single server. Reid was a “user” of that service who, in retweeting, appears to not have created any content but merely republished “information provided by another content provider.”[9]

Unsurprisingly, Reid’s attorneys signaled that she intended to argue just that in response to the complaint filed against her. Faced with the prospect of this hurdle, the plaintiff promptly dropped Reid’s retweet cause of action from the suit, although she has maintained her claims against Reid for allegedly false statements made after the retweet.

Many plaintiffs have suggested (without great success) that the primary justification underlying the enactment of the CDA — to assist the fledgling internet industry — no longer seems valid given the rapid growth and commercial success of the internet. Indeed, it is unlikely that Congress was able to imagine the existence of social media in the 1990s, much less that it would implicate the CDA in 2018. However, the vast majority of courts that have addressed this issue have held that Section 230 unambiguously provides broad immunity to providers and users of interactive computer services who do not create the offending content.

While plaintiffs persist in challenging this immunity, they are likely raising the issue with the wrong branch of government. The legislature enacted the CDA, which includes clear language providing for broad immunity to republishers. Given its unambiguous terms, courts must adhere to the CDA’s mandate. Consequently, any change to the CDA must start with the body that passed it, and not the courts that simply apply it.

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