How Defamation and Minor Protection Laws Ultimately Shaped the Internet

Kyiv, Ukraine – September 5, 2019: A paper cubes collection with printed logos of world-famous social networks and online messengers, such as Facebook, Instagram, YouTube, Telegram and others.

The Communications Decency Act (CDA) was originally enacted with the intention of shielding minors from indecent and obscene online material. Despite its origins, Section 230 of the Communications Decency Act is now commonly used as a broad legal safeguard for social media platforms to shield themselves from legal liability for content posted on their sites by third parties. Interestingly, the reasoning behind this safeguard arises both from defamation common law, and constitutional free speech laws. As the internet has grown, however, this legal safeguard has gained increasing criticism. However, is this legislation actually undesirable? Many would disagree as section 230 contains “the 26 words that created the internet.”

 

Origin of the Communications Decency Act

The CDA was introduced and enacted as an attempt to shield minors from obscene or indecent content online. Although parts of the Act were later struck down for first amendment free speech violations, the Court left section 230 intact. The creation of section 230 was influenced by two landmark court decisions of defamation lawsuits.

The first case was in 1991, and involved an Internet site that hosted around 150 online forums. A claim was brought against the internet provider when a columnist of one of the online forums posted a defamatory comment about his competitor. The competitor sued the online distributor for the published defamation. The courts categorized the internet service provider as a distributor because they did not review any content of the forums before the content was posted to the site. As a distributor, there was no legal liability, and the case was dismissed.

 

Distributor Liability

Distributor Liability refers to the limited legal consequences that a distributor is exposed to for defamation. A common example of a distributor, is a bookstore or library. The theory behind distributor liability is that it would be impossible for distributors to moderate and censor every piece of content that they disperse because of the sheer volume, and the impossibility of knowing whether something is false or not.

The second case that influenced the creation of section 230, was Stratton Oakmont, Inc. v. Prodigy Servs. Co., in which the court used publisher liability theory to find the internet provider liable for the third party defamatory postings published on its site.  The court deemed the website a publisher because they moderated and deleted certain posts, regardless of the fact that there were far too many postings a day to regulate each one.

 

Publisher Liability

Under common law principles, a person who publishes a third-party’s defamatory statement bears the same legal responsibility as the creator of that statement. This liability is often referred to as “publisher liability,” and is based in theory that a publisher has the knowledge, opportunity, and ability to exercise control over the publication. For example, a newspaper publisher could face legal consequences for the content located within it. The court’s decision was significant because it meant that if a website attempted to moderate certain posts, it would be held liable for all posts.

 

Section 230’s Creation

In response to the Stratton-Oakmond case, and the ambiguous court decisions regarding internet services provider’s liability, members of Congress introduced an amendment to the CDA that later became Section 230. The Amendment was specifically introduced and passed with the goal of encouraging the development of unregulated, free speech online by relieving internet providers from any liability for their content.

 

Text of the Act- Subsection (c)(1) 

“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 further provides that…

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

 The language above removes legal consequences arising from content posted on their forum. Courts have interpreted this subsection as providing broad immunity to online platforms from suits over content of third parties. Because of this, section 230 has become the principal legal safeguard from lawsuits over sites content.

 

The Good

  •  Section 230 can be viewed as being one of the most important pieces of legislation that protects free speech online. One of the unique aspects of this legislation is that it essentially extends free speech protection, applying it to private, non-governmental companies.
  • Without CDA 230, the internet would be a very different place. This section influenced some of the internet’s most distinctive characteristics. The internet promotes free speech and offers the ability for worldwide connectivity.
  • The CDA 230 does not fully eliminate liability or court remedies for victims of online defamation. Rather, it makes only the creator themselves liable for their speech, instead of the speaker and the publisher.

 

 

The Bad

  •  Because of the legal protections section 230 provides, social media networks have less of an incentive to regulate false or deceptive posts. Deceptive online posts can have an enormous impact on society. False posts have the ability to alter election results, or lead to dangerous misinformation campaigns, like the QAnon conspiracy theory, and the anti-vaccination movement.
  • Section 230 is twenty-five years old, and has not been updated to match the internet’s extensive growth.
  • Big Tech companies have been left largely unregulated regarding their online marketplaces.

 

 The Future of 230

While section 230 is still successfully used by social media platforms, concerns over the archaic legislation have mounted. Just recently, Justice Thomas, who is infamous for being a quiet Justice, wrote a concurring opinion articulating his view that the government should regulate content providers as common carriers, like utilities companies. What implications could that have on the internet? With the growing level of criticism surrounding section 230, will Congress will finally attempt to fix this legislation? If not, will the Supreme Court be left to tackle the problem themselves?

Why it Matters: Lawyers, the Spread of Misinformation and Social Media

It is important to remember the role lawyers play in and how the public views public figures, attorneys and the judicial system. This is especially true when posts are made on social media platforms or when statements are made available to the public in any manner. Many recent occurrences bring this important situation to light, most notably Rudy Giuliani’s unproven campaign regarding the “Big Lie” a/k/a the stolen election. Attorneys and important public figures may need to be held to a higher standard of care and accountability due to the public’s heavy reliance on the truth of their statements. Because of this reliance, social media companies, and the Courts, are forced into action to curb the spread of false information.

Facts on the spread of information on the internet. So many people now rely on social media as a way of communication and as a news source, which can sometimes be their only source. Information online can now spread faster than any other news source in history. The science behind the spread of information online, is quite astounding (and there is actual science behind it!).

A Massachusetts Institute of Technology (MIT) study found that “It took the truth about six times as long as falsehood to reach 1500 people and 20 times as long as falsehood to reach a cascade depth of 10. As the truth never diffused beyond a depth of 10, we saw that falsehood reached a depth of 19 nearly 10 times faster than the truth reached a depth of 10.” These numbers show that false information spreads faster, farther and deeper than the truth. All users of social media are exposed and susceptible to false information, including attorneys, and our ability to discern true versus false information has become distorted leaving many users vulnerable.

 

 

What causes of the spread of misinformation and who is susceptible? The American Psychological Association has published information on the causes of misinformation spreading and who is most susceptible. Researchers looked at individual differences and identified that “[b]roadly, political conservativism and lower levels of educational attainment are correlated with an increase in susceptibility to fake news.” Further, “[s]ix ‘degrees of manipulation’—impersonation, conspiracy, emotion, polarization, discrediting, and trolling—are used to spread misinformation and disinformation.” A false news story may quote a fake expert, use emotional language, or propose a conspiracy theory in order to manipulate readers.

People use the following five criteria to decide whether information is true: 1) compatibility with other known information, 2) credibility of the source, 3) whether others believe it, 4) whether the information is internally consistent, and 5) whether there is supporting evidence. The study also shows that people are more likely to accept misinformation as fact if it’s easy to hear or read. “We want people to understand that disinformation is fundamentally exploitative—that it tries to use our religion, our patriotism, and our desire for justice to outrage us and to dupe us into faulty reasoning,” says Peter Adams, News Literacy Project’s senior vice president of education. “Much of that is a psychological phenomenon.”This information may be helpful in understanding how a once highly respected lawyer and politician, is now the focus of discipline-committee-attention.

Rudy Giuliani. Social media is important to the legal profession because the court systems and attorneys use it to reach the public and potential clients. Consequently, it is of utmost importance to respect social media and to know how it functions to make it work for the intended purpose. Rudy Giuliani, attorney, former Mayor of New York City and personal counsel to President Trump, is the most prominent and current example of an attorney who used social media to spread misinformation. Giuliani is currently involved in numerous lawsuits for spewing a theory of election fraud that was ultimately disproved. Intriguingly, even though the claims lacked evidence to support them and were ultimately dispelled by the Judicial System, members of society believed these claims as truth while a large number of people still believe them.

Giuliani made these claims on mainstream media, his YouTube channel and seemingly anyone that would listen including Fox News. An anonymous source at Fox News stated, “We turned so far right we went crazy.” Giuliani reportedly earned monies making plugs to sell items during interviews and on his YouTube channel while making the statements at issue. Smartmatic filed suit against Rudy Giuliani and Fox News amongst others which is separate from the Dominion suit filed against Giuliani. These two suits encompass the same general claims, that Giuliani made false statements that the 2020 US Presidential election was stolen resulting in irreputable harm to companies.

Both the NYC Bar Association and the New York State Bar Association filed complaints against Mr. Giuliani requesting an investigation into his conduct.

The Appellate Division’s First Judicial Department of the New York Supreme Court suspended Giuliani’s law license on an interim basis in a June 24, 2021 decision concluding that his conduct threatened public interest. Not only did his behavior threaten public interest but it also tarnished the reputation of lawyers and the judicial system as a whole. The opinion further states, “When false statements are made by an attorney, it also erodes public confidence in the legal profession and its role as a crucial source of reliable information.”

Other examples of attorney epic-fails. An Illinois attorney wrote in her blog post referring to a judge as being “a total asshole,” and in another blog entry referred to a judge as “Judge Clueless.” The attorney also wrote about client specific cases and identified her clients by jail number or first name. That attorney received a 60 days suspension and was terminated from her employment as an Assistant Public Defender. Here, the attorney’s opinion, while it is hers and she has a right to it, could influence other court system employees, attorneys, judges or lay people entering the judicial system for whatever reason resulting in an influenced preconceived notion of the judge and the judge’s ability to render decisions in a case.

A Tennessee lawyer was suspended for 60 days for giving Facebook advise on how to kill and ex-boyfriend and make it look like self-defense while providing information on the new stand your ground law and the castle doctrine. Because a Florida lawyer made disparaging statements and accusations of judicial witchcraft, that attorney was disbarred and arrested!

Lawyers are held to a higher standard. Period.  While Giuliani’s attorneys are arguing his right to make those statements are protected under his First Amendment right to free speech, “lawyers, as professionals, are subjected to speech restrictions that would not ordinarily apply to lay persons.” Especially, when it comes to judiciary review committees.

The legal system of attorneys is primarily a self-governing entity due to the professional legal standards inherent in the job. Attorneys swear an oath to support the Constitution of the United States before admission to practice. Attorneys are expected to uphold certain legal standards, enforce other attorneys to uphold those legal standards and, if necessary, report another attorney’s actions. A grievance committee is used to deter and investigate unethical conduct which can result in sanctions or commencement of a formal disciplinary proceeding at the Appellate Court level, as in the case of Mr. Giuliani’s interim suspension.

Rules to keep in mind as a practicing attorney. These rules come from the NY Rules of professional conduct

  • Rule 4.1 governs Truthfulness in Statements to Others and reads, in part, “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”
  • Rule 8.3 governs Reporting Professional Misconduct and reads in part, “(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”
  • Rule 8.4 governs Misconduct and reads, in part, “A lawyer or law firm shall not: … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and “(h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

What can be done to curb the spread of misinformation going forward? It seems inevitable that something has to give when it comes to social media and the downward spiral that may or may not hit rock bottom but only time will tell. Social media plays an important role in how our society communicates, shares ideas and inspires others. But is self-regulation enough? Should there be heightened standards for persons of influence? Should social media be regulated or are the companies sufficiently regulating themselves? Can the government work together with social media platforms to achieve a higher standard? Is judicial witchcraft even a thing? Regardless, your license to practice law is what it’s all about so choose your words wisely.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

May it Please The Court, I’d Like to Tweet Now

Last week, the Iowa Supreme Court submitted a proposal to revise its current rules for expanded media coverage during courtroom proceedings, specifically addressing the use of smart phones, tablets and the like to live blog and tweet. With most of my courtroom experience to date taking place in NY and PA courts I found this to be quite interesting. Although some judges in NY and PA allow certain uses of mobile devices, most courts I have been in had a pretty strict no-cell-phone-use policy. I have, on more than one occasion, witnessed judges stop everything in order to reprimand an attorney or even a gallery member for not having their phone on silent. There are currently 36 states (see survey link below) that have a policy addressing the use Twitter in the Courtroom, but only a handful of those policies actually allow members of the media to use social media to report live from court.

One can immediately see at least some of the upside of allowing live tweets from court, as nationwide-dissemination of a tweet to the general public will grant them instantaneous access and knowledge of everything happening in the proceeding. However, one should just as easily be able to recognize some shortfalls of allowing the use of social media from live court. For instance, what if an empanelled juror came across certain blogs or tweets that affects their impartiality? Can justice truly be served or will the use of social media during a live trail put certain litigants at a disadvantage? With the exponential growth of social media and more and more people getting their news from social media platforms each year, it seems only inevitable that these are questions courts across the country will be facing in the near future. However, according to the most recent survey conducted by the CCPIO, an organization that partners with the National Center for State Courts, we are still further away than one might think from all courts hopping on the Social Media Train.

Doctors and Judges: Who Can They Friend On Facebook?

Some doctors use social media to discuss health topics, while other doctors use their Facebook or twitters as a tool to become more available to their patients.  Doctors who accept friend requests from patients may face concerns such as protecting patient privacy and maintaining appropriate boundaries between professional and social relationships.  At first glance, one may believe that there is no harm in doctors and patients being Facebook friends, however, as the article notes, this could violate HIPPA laws.

Judges face similar challenges when they choose to accept friend requests from prosecutors or defense lawyers who appear before them. In Florida, the court may soon clarify the parameters that judges and lawyers must abide by in regards to social media interaction. A Broward criminal case could set the stage for state law that will dictate who a judge can “friend” on Facebook.   This case arose after a defense attorney filed a motion to disqualify a judge because he was friends on Facebook with the assistant state attorney.

Would you feel comfortable friend requesting your doctor?

 

Skip to toolbar