Random thoughts on online defamation (Part II)

Last week I shared my random thoughts on online defamation, leaving the discussion on the issue of the liability of the site provider for this week. Picking up where I left off, one of the issues that was raised in ANC’s Media In Focus episode on the MF controversy was whether a blog site author had the responsibility of “editing” or “screening” the contents of the comments by third parties on his site. The discussion in Media In Focus was limited to that query, but the issue could be developed further. If the web host did not take it upon himself to edit the contents of the site, could he be found liable for the defamatory comments posted thereat?

Our jurisdiction does not appear to have any legislation or administrative rule that precisely addresses this matter. But in the U.S., there is a federal law that functions to protect a web host from legal claims arising from hosting information written by third parties, Section 230 of the Communication Decency Act of 1996 (47 USC §230). Under this legal provision,

“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.”

Section 230 has been employed by US courts as basis for holding several Internet intermediaries free from liability for information given by third parties. For instance, in the case of Does 1-30, et al. v. Franco Productions, et al., a video scandal of a bunch of college athletes who were shot in different stages of undress circulated in the internet. The Chicago judge disallowed them from suing the Internet Service Providers (ISPs) that hosted Web sites selling the videos. On MTD by the defendants-ISPs, the U.S. District Judge dismissed the case, holding that they are immune from liability under the Communications Decency Act of 1996.

In Lunney v. Prodigy, an unknown person posted offensive messages on an e-bulletin board, using the name of a certain Boy Scout. The imposter also sent an email to the local scoutmaster containing hostile and sexual messages, identifying himself as the said Boy Scout. The boy’s father filed a defamation lawsuit against the ISP, but the CA held that an ISP is merely a conduit for information, as opposed to a publisher, and consequently is no more responsible than a telephone company for defamatory materials transmitted over its lines.

In the case of Mr. Blog Author of the MF controversy, he is a blogger who has created the blog through a service provider. So if he publishes defamatory posts about MF, he may be made liable for libel. But he is likewise a provider himself, inasmuch as he allows third parties to post their comments or add other information on his blog. Thus, for the defamatory comments posted by readers of his site, he is covered by the protection given by Section 230. Had MF chosen to the run after Mr. Blog Author for having allowed his readers to post such “defamatory” comments on his blog, Mr. Blog Author would be protected by Section 230. That is, if we had a statute affording the same protection Section 230 does.

The field of online defamation is already greatly recognized in other countries, but given the extent that the Philippine society has embraced the tools of the cyber era, perhaps it is only a matter of time that our legislators get a wind of the need for specific laws that address these matters.