JuicyCampus May Sour Communication Decency Act of 1996

In the fall of 2007, college student Matt Ivester founded JuicyCampus.com, an Internet blog that allows fellow college students to anonymously post information about each other. Since its founding, the blog has created much controversy for containing hate speech, potentially defamatory and libelous statements and spreading allegedly malicious gossip about students. The student government at one college has even gone so far as to request that the site be banned.

Responding to a complaint from a student whose address had been featured on the site, the office of the New Jersey attorney general has launched an investigation into the site, recently subpoenaing its records. According to a statement, the attorney general believes the site may be violating New Jersey’s Consumer Fraud Act by suggesting that it does not allow offensive material but providing no enforcement mechanism for that rule and no way for users to report or dispute the material.

Notwithstanding the actions of the attorney general, owners and operators of Internet blogs such as JuicyCampus who publish potentially defamatory statements authored by third parties are immunized from liability by the federal Communications Decency Act of 1996. Overriding the traditional treatment of publishers, distributors and speakers under statutory and common law, Congress passed the CDA “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services.”

JuicyCampus has already asserted its immunity under federal law, which pursuant to the Supremacy Clause, would pre-empt any New Jersey state statute. Furthermore, the CDA, itself, explicitly states that it pre-empts state law. If the attorney general challenged the immunity afforded JuicyCampus under the CDA, the issue would have to be litigated in the 3rd U.S. Circuit Court of Appeals, which on previous occasions has interpreted the CDA as immunizing Internet blog owners and operators from any cause of action that would make them liable for solely publishing information provided by a third-party user of their service. In Green v. American Online, Inc., 318 F.3d 465 (3d Cir. 2003), cert. denied, 540 U.S. 877 (2003), American Online was sued by one of its customers for allegedly refusing to take action against other customers who, in impersonating him in an AOL “chat room,” solicited gay sex and falsely claimed he was bisexual. In holding AOL immune from liability, the 3rd Circuit interpreted the CDA as precluding “courts from entertaining claims that would place a computer service provider in a publisher’s role, and therefore bars lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone, or alter content.”

Although Congress acted to keep government regulation of the Internet to a minimum, it nevertheless did not provide absolute immunity to Internet users and Web site operators. Information content providers remain liable when they are “responsible, in whole or in part, for the creation or development of information” for publication. The distinction between merely publishing information provided by a third party as an interactive computer service and actually being responsible for creating or developing any of the information posted as an information content provider was and continues to be critical to the determination of whether the CDA provides a safe haven for blog owners and operators such as JuicyCampus.com. If the attorney general can demonstrate that JuicyCampus is somehow “responsible, in whole or in part” for the creation of the offensive content, she may be successful in creating a potential exception to immunity pursuant to the CDA. 

Natalie Klyashtorny, Esq.
Nochumson P.C.
www.nochumson.com

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