Does eBay commit libel when eBay knowingly publishes false negative feedback

[CameronNewport]

Here's what the Drudge case states (quoting the Zeran case...I'm killing two birds with one stone ):

Any attempt to distinguish between "publisher" liability and notice-based "distributor" liability and to argue that Section 230 was only intended to immunize the former would be unavailing. Congress made no distinction between publishers and distributors in providing immunity from liability. As the Fourth Circuit has noted' "f computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement -- from any party, concerning any message," and such notice-based liability "would deter service providers from regulating the dissemination of offensive material over their own services" by confronting them with "ceaseless choices of suppressing controversial speech or sustaining prohibitive liability" -- exactly what Congress intended to insulate them from in Section 230. Zeran v. America Online, Inc.

Again, it's a given that publishers are immune under 230. The issue is whether distributors are immune as well (and this court came to the same conclusion as the Barrett court).

 

[quincy]

I don't see how you are reading these, Cameron. You are reading them backwards, perhaps?

CDA's 230 precludes (makes it impossible for) the Court from entertaining claims (to consider lawsuits) that consider an ISP or a website a publisher. Any suit brought against an ISP or website, trying to hold them liable for third party content, is barred (not allowed, forbidden) because they are distributors and not publishers.

In Prodigy, however, the Court rejected Prodigy's claims that they were a distributor and immune from prosecution. The Court said that Prodigy acted more like a publisher than a distributor and therefore had no immunity.

In Zeran, the Fourth Circuit said that if websites were to be held liable for third party content, and considered publishers of the material and not distributors of the material, then they could face liability any time and every time anyone posted anything. That, said the Fourth Circuit, is exactly what the CDA's 230 was intent on preventing, as it would limit free speech and hamper free exchange and do all sorts of dastardly things like that.

Publishers can be held liable for content because they have editorial control over the content. Distributors merely make the content available to the public but have no control over what is said (because there is way too much material for them to read, let alone have control over).

Think again of a library - a librarian can give you a book but cannot guarantee its contents because she has not read all of the books in the library and has no control over what is written in them. The librarian is the distributor of the material only. The publisher and author of the book, however, have the control over what was written in the book. They are the publishers of the material.

So, if you read something in a book that is defamatory, sue the author and the publisher, and not the librarian.

 

[CameronNewport]

CDA's 230 precludes (makes it impossible for) the Court to entertain claims (to consider lawsuits) that consider an ISP or a website a publisher. Any suit brought against an ISP or website, trying to hold them liable for third party content, is barred (not allowed, forbidden) because they are distributors and not publishers.

Here's the first problem: "because they are distributors and not publishers." No. Those lawsuits are barred because Congress granted those people who would otherwise be publishers immunity. That's all there is to it.

Now let's look at the publisher versus distributor issue: The plaintiffs sued the defendants for defamation. Some of the defendants moved the court to have the cases dismissed because they claimed they enjoyed the 230 immunity given to publishers. The Plaintiffs argued that the defendants were not publishers, but were instead distributors, and that 230 immunity did not apply to distributors. The courts then stated that distributors are also immune under 230.

How else do you explain this quote: "Any attempt to distinguish between "publisher" liability and notice-based "distributor" liability and to argue that Section 230 was only intended to immunize the former [the former being "publisher"] would be unavailing."

Plaintiffs were arguing that 230 immunity only applies to publishers. The courts disagreed. Of course it applies to publishers, but it also applies to distributors.

 

[quincy]

You are wrong here, Cameron.

 

[Zigner]

You are wrong here, Cameron.

He's used to it...

 

[CameronNewport]

You are wrong here, Cameron.

Wrong about what? All I did was quote the courts.

 

[quincy]

You are wrong, Cameron, because you are quoting parts of Zeran's argument in Zeran v. American Online, Inc. and the Judge's response to Zeran's argument.

The first case addressing liability for third party content was Cubby v. Compuserve, and Compuserve won by claiming lack of editorial control over the content posted, and that they acted as a distributor of the content and not a publisher of the content.

Then Stratton Oakmont v. Prodigy came along, and the court ruled against Prodigy, saying Prodigy DID have editorial control over the content. The court looked at Prodigy as a PUBLISHER and not just a distributor of the content. As publisher, Prodigy was responsible, hence liable, for the defamatory content appearing.

Immediately after Prodigy, Congress passed the CDA and Section 230, placing all liability for online content on the online writer of the content. Thus, Section 230 is saying that ISPs and websites are NOT operating as traditional publishers (like newspaper and book publishers) but as distributors only, even when these ISPs and websites perform some of the same duties as newspaper publishers or book publishers (ie. editing content).

The Communications Decency Act, 230, says, "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."

A flurry of cases followed the CDA. Included in these cases was Barrett. All pretty much were unanimous in ruling that, under 230, ISPs and websites have no control over content posted by third parties, are therefore not publishers of material but rather distributors and, although there are exceptions noted in some decisions, this is where it stands.

A different argument for ISP and website liability came in Zeran v. AOL. Zeran filed suit against AOL saying AOL was responsible for the defamatory content appearing because AOL failed to remove defamatory content from the site after notification. The "notice-based" distributor comment you quoted above refers to this case and Zeran's argument that, when notified of defamatory content, the ISP or website should be held liable, because a "notice-based" distributor has control over the content just as a publisher does.

Chief Justice Wilkinson, in the Court of Appeals, said that 230, ". . .precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, postpone or alter content - are barred."

ISPs and websites, when they have no role in creating the content, are NOT PUBLISHERS. They are distributors. They hold no liability, under 230, for content posted by a third party.

It was Zeran who argued that AOL acted as a publisher as well as a distributor. But Zeran lost his case, both in District Court and on appeal.

And so do you.

 

[CameronNewport]

The Communications Decency Act, 230, says, "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."

Wow. You're really, really misinterpreting the law, the case law, etc. Forget the cases for a moment. Let's look at the law.

This is what you think 230 says: "Thus, Section 230 is saying that ISPs and websites are NOT operating as traditional publishers (like newspaper and book publishers) but as distributors only, even when these ISPs and websites perform some of the same duties as newspaper publishers or book publishers (ie. editing content)."

230 is not that complicated. 230 simply states that certain people do not fall within the legal definition of "publisher." What does that mean so far as defamation suits are concerned? It means that whenever those certain people do something that would otherwise expose them to liability as a publisher, they get a free pass because Congress said "nope, you're not a publisher." Does that mean Congress is redefining those people as distributors? Heck no. Where did you get that?

But let's assume for a moment that you're correct...Congress redefined certain people who would otherwise be publishers as distributors. Okay, now where do you read that distributors are immune? I don't see that anywhere. Do you think that only publishers can be liable for defamation? If so, then you are sorely mistaken. Distributors who have knowledge that they are distributing defamatory statements can be held liable for defamation. So, in your interpretation of the law, how do those distributors with knowledge have immunity under 230?

 

[CameronNewport]

Quincy, I think I see where your confusion is coming from. Here's a quote from Zeran:

Another important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services. In this respect, § 230 responded to a New York state court decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995). There, the plaintiffs sued Prodigy--an interactive computer service like AOL--for defamatory comments made by an unidentified party on one of Prodigy's bulletin boards. The court held Prodigy to the strict liability standard normally applied to original publishers of defamatory statements, rejecting Prodigy's claims that it should be held only to the lower "knowledge" standard usually reserved for distributors. The court reasoned that Prodigy acted more like an original publisher than a distributor both because it advertised its practice of controlling content on its service and because it actively screened and edited messages posted on its bulletin boards.

You seem to think that 230 would make Prodigy's argument a realization...that under 230, Prodigy would be held to the lower "knowledge" standard reserved for distributors. That is wrong. First, it doesn't help those distributors with knowledge, and second, it's just not stated in the case. Look at what the court states, and what Zeran is arguing:

§ 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.

Zeran argues, however, that the § 230 immunity eliminates only publisher liability, leaving distributor liability intact.

The court states that ISPs and whatnot are immune from publisher liability (again, there is nothing to indicate that they are suddenly "distributors"). Zeran argues that AOL is not a publisher anyway, but its a distributor, and that only publishers are immune. Zeran then points out all the differences between publishers and distributors.

Because of the difference between these two forms of liability, Zeran contends that the term "distributor" carries a legally distinct meaning from the term "publisher."

Isn't that what you're arguing? That distributors are not publishers? Zeran is making that argument because it thinks that only publishers are immune. You're thinking that because you think only distributors are immune. In both cases you're both wrong:

In this case, AOL is legally considered to be a publisher. "[E]very one who takes part in the publication ... is charged with publication." Id. Even distributors are considered to be publishers for purposes of defamation law...

AOL falls squarely within this traditional definition of a publisher and, therefore, is clearly protected by § 230's immunity.

How could the court be clearer than that? AOL is a distributor. Distributors are publishers. 230 gives immunity to certain publishers, such as AOL.

 

[quincy]

Ha. Now I see why Zigner gets so frustrated with you, Cameron.

What part of "No provider or user shall be treated as PUBLISHER. . . " don't you understand???? I can't figure it out.

You SEEM to be using the failed arguments of the losers in these actions to support whatever it is you are trying to say here, Cameron. ZERAN LOST. You cannot use the same arguments Zeran used to support anything, because HE LOST! The court did not buy his arguments. And I don't buy yours.

Unbelieveable. Just unbelieveable.

Cameron, let's just PLEASE give this a rest, okay? Let's just let the readers of these posts read what is already here, and they can come to their own conclusions, whatever conclusions those may be (and if they conclude you are a few fries short of a Happy Meal, I will not be surprised).

 

[CameronNewport]

Ha. Now I see why Zigner gets so frustrated with you, Cameron.

Let's give this a rest, okay? I will let you believe that you are right, and the readers of these posts can determine the truth of it all on their own.

LOL. Zigner gets frustrated because he's a dope.

But why give it a rest? I'd love for you to explain this quote from the Zeran court:

AOL falls squarely within this traditional definition of a publisher and, therefore, is clearly protected by § 230's immunity.

If that doesn't mean that AOL is a publisher, and that publishers have immunity under 230, then what the heck does it mean? Seriously...I'm baffled that you don't seem to understand that quote. Can you explain yourself?

 

[CameronNewport]

What part of "No provider or user shall be treated as PUBLISHER. . . " don't you understand???? I can't figure it out.

You SEEM to be using the failed arguments of the losers in these actions to support whatever it is you are trying to say here, Cameron. ZERAN LOST. You cannot use the same arguments Zeran used to support anything, because HE LOST! The court did not buy his arguments. And I don't buy yours.

Ahhh, you edited your post.

I'll respond because I know why you're confused.

First, I'm not making Zeron's argument. How could I be? I quoted the court's opinion ruling that Zeron was wrong.

Zeron's argument: 230 gives publishers immunity. AOL is not a publisher. AOL is a distributor with knowledge. AOL does not have immunity under 230.

Court: 230 gives publishers immunity (no argument there). AOL is a distributor with knowledge (no argument there). Distributors are publishers. AOL is a publisher. AOL has immunity.

Clearly you're confused by 230's language "No provider or user of an interactive computer service shall be treated as publisher." This is what that means: AOL is a publisher that would ordinarily be treated as a publisher under defamation laws (i.e. it would be liable). However, since AOL is a "provider or user of an interactive computer service," it won't be treated as a publisher under defamation laws (i.e. it has immunity). Notice the emphasis on the word "treated." AOL is a publisher, but it won't be treated as a publisher.

EDIT: I'm not trying to be stubborn or to pick a fight. I'm just asking you to make a good faith effort to understand. How can you explain the court's opinion if I am wrong? The court bluntly states that AOL is a publisher. The court bluntly states that AOL is the type of publisher that is immune under 230. You are contradicting the court's blunt statements. Can you directly address that in your next post? You seem to be ignoring the court's opinion.

 

[quincy]

Cameron, the only thing I am confused about is why you are still posting.

Give it a rest.

The cases have been cited. You think you are right. Let others determine that for themselves.

 

[CameronNewport]

Cameron, the only thing I am confused about is why you are still posting.

Give it a rest.

The cases have been cited. You think you are right. Let others determine that for themselves.

I thought we were having a decent conversation. Can you address what I asked you? If I thought I were wrong, I'd admit it (as I did earlier in the thread). So, you can assume that I believe I am correct in good faith (i.e not a troll). So, can you do the same?

 

[quincy]

First, Cameron, I am not really here to have a decent conversation.

Second, I understand what you are saying. I accept that ISPs and websites are not to be treated as publishers when it comes to defamatory content posted by third parties, and that 230 provides them immunity from prosecution over this content.

I believe that is what I have been saying all along and which, if I am not mistaken, you recently learned in post number nine, after disputing that very fact in your post number six.

But, if you have been trying to get me to say that ISPs and websites are publishers, and that is all you have been trying to get me to say lo these many posts, then, okay, ISPs and websites are online publishers. But, unlike traditional publishers who are liable for the content of the material they publish, like newspaper publishers and book publishers are, these online publishers have been given immunity for some of the material posted online. Unlike traditional publishers, ISPs and websites do not have control over the content published online and instead they merely act as distributors of this content which is written and provided by others.

If an ISP or website WERE to contribute to the content, however, then they would be treated as traditional publishers and lose any 230 immunity they might have.

Now I am out of here.