Imagine a beautiful fall day on a Southern college campus. The leaves are changing, and the sound of the band practicing for this weekend’s big game echoes throughout campus. Jane, a college freshman, is walking through campus on the way back to her dorm from her Biology 101 class. Usually, Jane’s walk is uneventful, aside from the occasional run-in with a friend or sorority sister; however, today is much different. Jane notices that many people are staring, pointing, and snickering at her. Is there something on her face? She quickly pulls out her compact and realizes that all makeup is intact. Is there something wrong with her clothes? She briskly looks herself over and nothing is out of place. Paranoid, Jane starts to walk back to her dorm a little faster, but people are still staring. All of a sudden, someone in the crowd yells, “Hey Jane, nice picture on collegegossip.com!”
Confused, Jane tries to imagine what this guy is talking about. What picture? Her memory is faded from the events of last weekend due to her drinking too much at a keg party. But her friends would not have let anyone take picture of her passed out, right? Finally arriving at her dorm, Jane hurries onto the computer and goes to the website. There, Jane is horrified to view an anonymously posted picture of her passed out naked on a stranger’s bed. Under the picture is a string of comments claiming that Jane is a “whore, who gave me syphilis.” Desperate, Jane contacts the operators of the website and begs them to remove the picture and the comments. Jane also informs the operators that she has never contracted a sexually transmitted disease and that, if they did not remove the material, she would sue for defamation. Days later, the operators respond to Jane, and tell her that they are protected by federal law and are not required to remove the statements. The operators also inform Jane that the anonymous posters have a First Amendment right to tell it how it is.
Unfortunately, this nightmare is all too real. Anonymous gossip websites, blogs, social networking websites, online bulletin boards, and other similar types of Internet forums allow people to speak their minds and exercise their First Amendment right to free speech and expression; however, these online forums can be abused when people use the sites to defame others. When a defamatory statement is posted on the Internet, it is often times difficult to locate the individual responsible because most of the defamers are given anonymity by their Internet service provider (“ISP”). Plaintiffs in Internet defamation suits are unable to easily name their defamers since usually only the defamer’s screen name is available. Furthermore, most courts interpret the Communications Decency Act of 1996 (“CDA”) to give ISPs complete immunity from liability for the defamatory posts of third parties, even if notified that certain statements are defamatory. Thus, ISPs have no civil liability to remove defamatory material, and the defamed plaintiffs are left with little recourse. This judicial interpretation of the CDA is significantly different from the well-established common law of defamation, as well as the very purpose for the enactment of the CDA.
Internet defamation is an increasing problem, leaving the defamed helpless and the defamers believing they have a First Amendment right to post defamatory content. This Article will reemphasize the notion that the First Amendment does not protect defamatory speech on the Internet. Part I of this Article will discuss defamation law as part of common law, as applied to the Internet before the passage of the CDA, while Part II will discuss the judicial interpretation of the CDA in defamation cases. Part III of this Article will address the problems with the CDA as currently interpreted by the judicial system. Finally, Part IV will propose amendments to the CDA, which are intended to clarify the statute in order to give more legal options to defamed victims. Furthermore, Part IV will explain how the proposed amendments would not violate the First Amendment.