Reminder: Section 230 Protects You When You Forward An Email
Sometimes it feels like we need to keep pointing this out, but it's (1) often forgotten and (2) really, really important. Section 230 doesn't just protect big tech." It also doesn't just protect small tech." It literally protects you and me. Remember, the key part of the law so that no provider or user of an interactive computer service shall be held liable for someone else's speech:
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.
People often ignore or forget about that part, but it's important. It's come up in cases before, such as in Barrett v. Rosenthal. And, now we've got another such case, highlighted first by Prof. Eric Goldman.
Professor Janet Monge from the University Pennsylvania, and curator of part of the Penn Museum did not like what this HyperAllergic article said about her, and insisted that it was defamatory. She then sued a whole bunch of people, including the publisher, HyperAllergic, and the two authors of the article, Kinjal Dave and Jake Nussbaum. However, there were many others listed as well, including a fellow UPenn faculty member, Dr. Deborah Thomas, who did nothing more than share the article on an email listserv.
Back in February, the court easily dismissed the defamation claims against HyperAllergic and the two authors mainly because the allegations are... true:
The allegations in Dr. Monge's amended complaint demonstrate that this statement is, in all material respects, substantially true, and thus Hyperallergic, Ms. Dave, and Mr. Nussbaum cannot be held liable.
Other statements are non-defamatory because they're pure opinions that convey the subjective belief of the speaker and are based on disclosed facts."
However, now in dealing with the claims against Dr. Thomas, the court was able to use Section 230 to dismiss them even more easily without having to even analyze the content again:
Dr. Monge, by asserting defamation claims against Dr. Thomas, seeks to treat Dr. Thomas as the publisher of the allegedly defamatory articles which Dr. Thomas shared via email. This is precisely the kind of factual scenario where CDA immunity applies. Therefore, Dr. Thomas's conduct of sharing allegedly defamatory articles via email is immune from liability under the CDA.
Monge tried to get around this by arguing that Thomas materially contributed" to the defamation by including commentary in the email forward, but the court notes that since she did not contribute any defamatory content, that's not how this works. You have to imbue the content with its violative nature, and simply summarizing or expressing an opinion about the article in question is not that:
The CDA provides immunity to Dr. Thomas for sharing the allegedly defamatory articles via email and for allegedly suggesting that Dr. Monge mishandled the remains because Dr. Thomas did not materially contribute to the allegedly defamatory articles she forwarded.
As Prof. Goldman notes in his writeup of this case (which he describes as an easy case" regarding 230), this highlights two key aspects of Section 230:
This is a good example of how Section 230 benefits online users, not just Big Tech." Dr. Thomas gets the same legal protection as Google and Facebook, even though she's didn't operate any system at all.
It's also a reminder of how Section 230 currently protects the promotion of content, in addition to the hosting of it. That aspect remains pending with the US Supreme Court.
These are both important points. In the leadup to the Gonzalez case at the Supreme Court, lots of people kept trying to argue that merely recommending content somehow should not be covered by Section 230, but as this case shows were that to be the case, it would wipe out 230 in cases like this where its protections are so important.