LuminousVoid

Here is a guy that has integrated the Florida Dept. of Law Enforcement sexual predators database with Google Maps to create his own version of the database: FloridaSexualPredator.com. Its got lots of whiz-bang features like a color coded scheme for “predators” and “offenders” (as classfied by the state) and pop-ups with their photos and addresses.

Defamation?

What happens if his software screws up, and an incorrect address or name are given? If his security is poor and someone adds in the name of another? If the information he gleans from the florida database is incorrect, and he falsely repeats that someone is a sexual predator?

To find defamation liability, his fault would have to be at least negligence. Hard to say that it is unreasonable to rely on the FL database, but then again, it does say a fingerprint check is necessary so that positive ID with a sexual offender can be made. However, his program could be negligently written, so that he transfers addresses wrong, and points to the wrong house. Or he includes a subroutine in there from an older program that looks for a different addresses.

So there are a few ways that fault could sneak in there. Of course, he could just be plain old malicious and actually try to defame someone.

Publisher and Distributor Liability

Lets say that the fault is at the FL state database, and our operator is merely repeating this information. In his defense, he would try to argue that he was merely a “distributor” of the information, and not a “publisher.” This is akin to the distinction between a bookstore and a newspaper, both of whom are passing on the defamation, but one has more editorial control. The former needs to actually know he is actually defaming, while the latter is treated like the speaker — negligence will do.

CDA Limitation of Liability

A section of the Communications Decency Act comes into play. Section 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.”

On its face this appears to mean that our website operator can only be a “distributor,” and thus can only be liable if he actually knows. So if we are hurt, we tell him that he is being defamatory. He now knows. If he does not fix his site he will face defamation liability.

Zeran

The problem with this notice is Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). That case reads the CDA 230 as eliminating notice-based liability as well. Providers of interactive computer services, who are notified of their defamatory statements, can keep them on their websites.

Zeran gives very good reasons for this: Imagine the amount of notices that AOL would receive. Also imagine how AOL might take down speech simply upon notice, without investigating. Thus a notice could be a way to silence someone. This sort of thing keeps the internet vibrant. The internet activists like to say it “pushes decision-making to the edge of the network.”

User/Provider and Push/Pull

Zeran applies to providers of “interactive computer services.” Zeran would not shield the website if it was found to be run by a “user of an interactive computer service.” An interactive computer service is defined in the CDA 230 as

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Whatever that is, our website operator wants to provide it. Not use it, if he wants to retain his immunity. He would argue that he provides access to google maps and the FL database. He might even say that his webserver software, or the scripts he wrote to draw up that pretty stuff provide access to the server he is hosted on. I think it’s a long shot but a court might buy it.

A way to get around Zeran is by getting out from under the CDA. We could do this by arguing that the website operator is not putting out there information “provided by” another. He himself is going out there and getting it. That is not “provided by another,” that is “made available by another.” This is sort of a “push/pull” distinction.

I do not know whether this has been accepted or rejected as CDA doctrine. But I do know that this would have pretty clear ramifications for some technology out there. A lot of websites “pull” feeds of articles from each other and redisplay them — you can do that with this blog’s RSS feed . This would make these aggregators unable to gain the CDA’s immunity.