Web site liability

Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.

Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech "providers and users of interactive computer services" when the defamatory or obscene material is "provided" by someone else.

However, Zeran speaks only to an instant case where the forum provider was not actively involved in the defamatory publications.

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The appellate court rejected the plaintiff's argument and found no liability on the part of Matchmaker. The court found that Matchmaker is not an information content provider, but rather an "interactive computer service" which allows the public to post information on its Web site. Under the Communications Decency Act, "interactive computer services" do not incur liability because humans create the actual content.


1996 Section 230 of the Communications Decency Act (CDA), which states in part that "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". Note that this portion of the CDA was not struck down and remains law.


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Dendrite appealed, and the New Jersey appellate court affirmed the lower court's ruling. In its opinion, the court set out guidelines for lower courts to follow when faced with a request for an order compelling an ISP to reveal the identity of an anonymous Internet poster. The court developed a five-part test: (1) the plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond; (2) the plaintiff must identify the exact statements made by the poster; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must bring forth sufficient evidence for each element of its claim; and (5) the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity.


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