The Good Samaritan Defenses have been tested in court and have proved to be quiet effective. The Courts have concluded that Congress knew what it was doing and meant to protect ISPs from third party civil liability. Even where the service provider has some type of relationship with the content provider, the service provider was protected. As long as an ISP is not the content producer, Sen. Exon’s Communications Decency Act shields them from liability.
Let’s look at two cases where ISPs have successfully defended themselves against defamation cases.
The first case is perhaps familiar to some. It is the case of Blumenthal vs. Matt Drudge and AOL. Matt Drudge was a successful online gossip columnist. He had been producing material pursuant to an arrangement with Wired magazine, but when that arrangement expired, AOL seized the opportunity. They made an arrangement to have Drudge’s material made available to all AOL members for a one-year period.
It came to pass that Drudge had what he believe to be important material about Assistant to the President of the United States Sidney Blumenthal. Drudge reported that court records existed concerning Blumenthal's violence against his wife. Blumenthal took exception to the story and contacted Drudge and AOL to have the material removed. Drudge, in fact, withdrew the material.
But the damage was done and Blumenthal sued both Drudge and AOL for defamation. AOL sought refuge under the Good Samaritan Defense that, as a service provider, AOL could not be found liable for the content of third parties. It was conceded that AOL did exercise a degree of publisher's prerogative. AOL, pursuant to its contract with Drudge, could remove Drudge's material. But at no time was it found that AOL was engaged in any manner in the production of that material.
Generally ISPs play no role in the actual content creation. They provide access, hosting, and other network services. In AOL’s case, there was a formal relationship with the content producer, AOL had a degree of control over the content, and AOL even used its Drudge relationship in AOL publicity.
Nonetheless, the Judge concluded that AOL was protected against liability by the Good Samaritan defense. In so ruling, the Judge quoted Chief Judge Wilkinson who stated:
The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and, accordingly, to keep government interference in the medium to a minimum.
The act of screening, monitoring, or deleting content does not transform a service provider into a publisher and does not make it liable. [Green] Even where the service provider also acts as a content provider - even where the service providers comments on the third party content in question - as long as the service provider did not provide the content in question, the service provider is protected. [Donato slip at 20] Finally, receipt of notice by the offended party that the content is objectionable does not obligate the service provider to act and does not alter its immunity. [Donato slip at 35-36]
The second case: In Ben Ezra, Weinstein, and Co., Inc. v. AOL, a company brought suit against AOL on the grounds that AOL was publishing stock quote information and that price of the company's stock and its share volume were incorrectly listed. The company claimed that this misinformation was defamatory.
In this case, the content in question was presented on the AOL service through a contract between AOL and Comstock and Townsend. At times when AOL was aware that the data from Comstock and Townsend was inaccurate, AOL would send e-mails asking that the data be corrected. There were allegations that AOL deleted some information that it knew to be inaccurate. However, the contract specified that AOL could not revise or modify the content in any way. In addition, plaintiff was unable to establish that AOL was engaged in any manner in the production of the content.
The Court found that Sec. 230 clearly "forbid the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions." Plaintiff had failed to establish that AOL was engaged in the production of the content. As such, AOL as a service provider was immune from liability.
The Good Samaritan Defense has protected ISPs in a number of other cases as well.
- John Does v. Franco Productions: The Court found that PSINet and GTE were not liable where plaintiffs "were intercollegiate athletes who, without their knowledge or consent, were videotaped by hidden cameras in restrooms, locker rooms, or showers." Video tapes were then sold via websites hosted by GTE and PSINet.
- Zeran v. AOL: The Court found AOL not liable where, after the Oklahoma bombing, an anonymous poster announced in an AOL chat room the sale of t-shirts with highly offensive comments about the bombing on them, and then provided Zeran's name and phone number as the seller.
- Jane Doe v. AOL and Richard Lee Russell: The Court held that AOL could not be liable where Russell advertised in an AOL chat room the sale of child pornography.
- Gentry v. Ebay:The Court held that Ebay was not liable where third parties sold fake sports memorabilia through the service, providing description of goods on Ebay and selecting classification on site; the court found that Sec. 230 preempted state consumer causes of action.
- Schneider v. Amazon.com, Inc.: The Court held that Amazon.com was immune for liability where third parties made allegedly false statements about plaintiff in book review posted on website.
The Good Samaritan defenses would appear to cover a broad range of situations and services. ISPs are immune from liability in those situations where it is acting as a service provider and third party content traverses its system. Reviewing the legal history, this covers chat rooms, webpages, and proprietary content delivery such as on the AOL network. Logically, the defenses could also cover e-mail, IRC, USENET, web based chat, e-mail discussion groups, FTP, streaming media, telephony, and other application where the ISP provides network services but is not engaged in the content production. In addition, as has been seen, the ISP can be actively engaged in the content delivery. AOL had a contractual relationship with content creators and had certain levels of publisher rights to post or remove the content. A breached promise to remove content does not remove the immunity. [Barnes] [Schneider] As long as AOL did not produce the content, it could not be held to be liable.
