Friday, March 21, 2008

Deception about defamation

This story, College Gossip Site Under Scrutiny, reports: “New Jersey prosecutors have subpoenaed records of, a Web site that publishes anonymous, often malicious gossip about college students…. JuicyCampus may be violating the state’s Consumer Fraud Act by suggesting that it doesn’t allow offensive material but providing no enforcement of that rule — and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday.” The state got involved when a student “came forward who had been terrorized by posts on the Web site that included her address. Prosecutors have subpoenaed information from JuicyCampus on how it is run, citing concerns about ‘unconscionable commercial practices.’”

If the unconscionability is that they allow, even encourage, defamation, this will be a tough sell given §230’s preemptive scope.

On cyberprofs, discussion centered on whether the site’s Terms of Service might be deceptive in purporting to ban defamatory and other abusive content while the site’s owners are actually not policing at all. In response, one participant pointed to another portion of the ToS:

6. No Pre-Screening or Regular Screening of Content.

You acknowledge that JuicyCampus does not pre-screen Content, but agree that JuicyCampus shall have the right (but not the obligation) to access, re-arrange, modify and remove or restrict access to any Content on the Site in its sole discretion and without notice or compensation.

So that might change one’s reasonable expectations.

Under the recent eBay case, § 230 does not immunize JuicyCampus from false statements about the content of its site. However, as the list discussion indicated, § 230 could still protect JuicyCampus. Section 230(c)(2) states that

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected ….

The preemption theory is that, by requiring JuicyCampus to enforce its conduct rules, state law would create an incentive to not have any conduct rules at all. Congress wanted to make it more attractive for ISPs to engage in private censorship, so applying state consumer protection law would conflict with that objective.

I don’t think there’s direct preemption. The gravamen of the alleged deceptive conduct is not that JuicyCampus takes any “action” voluntarily to restrict access, etc., but rather that it says it will and then won’t. Just as Congress wanted to make it attractive for ISPs to censor by ensuring that they’d be free from publisher liability whether they monitored content or not, Congress wanted sites to actually monitor. A site that pretends to do so in order to attract business isn’t giving Congress the benefit of its bargain. That said, there could still be conflict preemption if we believe that application of consumer protection law will deter sites from having acceptable conduct policies, as Congress desired (I personally doubt that; such policies are too attractive for other reasons, including attractiveness to advertisers).

Fundamentally, Congress didn’t anticipate problems like this – Judge Kozinski’s hypothetical, not so hypothetical after all, or advertisers soliciting user-generated comparative ads that turn out to defame the competition. I do think we’re going to need to revisit § 230, though what we should replace it with is much harder to say.

1 comment:

Anonymous said...

Where does Juicy Campus say that it will restrict access, etc.? That seems inconsistent with the quoted section of the TOS.