Caught in the Web: Enjoining Defamatory Speech that Appears on the Internet

Joseph G. Marano

Volume 69, Issue 4, 1311-1332

Courts have consistently interpreted section 230 of the Communications Decency Act (“CDA”) as shielding internet service providers from liability for defamatory content posted by users. This is a significant departure from traditional defamation law where publishers may be held liable for defamation upon reprinting defamatory material originally written or spoken by third parties. As this Note explains, the courts’ interpretations of section 230 are in direct conflict with the Act’s legislative history. Indeed, Congress made clear that the goal of section 230 was to protect websites that engaged in editorial self-regulation by deleting obscene and inappropriate content posted by users.

Because of this immunity, plaintiffs who are defamed on the internet have little recourse, largely due to the practical limitations inherent in litigating online defamation claims. The California Court of Appeal has attempted to fashion a remedy for this situation. In Hassell v. Bird, a case pending before the California Supreme Court, the California Court of Appeal issued an injunction ordering Yelp to remove a defamatory review. This Note supports the Court of Appeal’s decision, and argues that the evolving nature of the internet, along with the overbroad immunity courts have read into section 230 of the CDA, necessitate a remedy. This Note suggests that to protect First Amendment rights, and to overcome the traditional presumption against injunctions in defamation cases, courts should design third-party injunctions to require websites to remove only language that a court has found to be defamatory, and to also afford websites the opportunity to try the case on the merits in the event of a default judgment.

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