A bogus libel suit raises some interesting questions about the limits of Section 230

Local internet good guy Ron Newman has prevailed in a libel and copyright-infringement suit brought by a plaintiff who claimed Newman had effectively published libelous claims about him by moving the Davis Square Community forum from one hosting service to another.

Adam Gaffin of Universal Hub has all the details, which I’m not going to repeat here. The copyright claim is so ridiculous that I’m going to pass over it entirely. What I do find interesting in the suit, filed by Jonathan Monsarrat, is his allegation that Newman was not protected by Section 230 of the Communications Decency Act because, in switching platforms from LiveJournal to Dreamwidth, he had to copy all the content into the new forum.

Section 230 holds online publishers harmless for any content posted online by third parties, which protects everyone from a small community newspaper whose website has a comments section to tech giants like Facebook and Twitter. The question is whether Newman, by copying content from one platform to another, thereby became the publisher of that content, which could open him to a libel claim. The U.S. Court of Appeals for the First Circuit said no, and put it this way:

Newman copied the allegedly defamatory posts from LiveJournal to Dreamwidth verbatim. He did not encourage or compel the original authors to produce the libelous information. And, in the manner and form of republishing the posts, he neither offered nor implied any view of his own about the posts. In short, Newman did nothing to contribute to the posts unlawfulness beyond displaying them on the new Dreamwidth website.

There’s no question that the court ruled correctly, and I hope that Monsarrat, who has been using the legal system to harass Newman for years, brings his ill-considered crusade to an end.

Nevertheless, the idea that a publisher could lose Section 230 protections might be more broadly relevant. Several years ago I wrote for GBH News that Congress ought to consider ending such protections for content that is promoted by algorithms. If Facebook wants to take a hands-off approach to what its users publish and let everything scroll by in reverse chronological order, then 230 would apply. But Facebook’s practice of using algorithms to drive engagement, putting divisive and anger-inducing content in front of its users in order to keep them logged in and looking at advertising, ought not to be rewarded with legal protections.

The futility of Monsarrat’s argument aside, his case raises the question of how much publishers may intervene in third-party content before they lose Section 230 protections. Maybe legislation isn’t necessary. Maybe the courts could decide that Facebook and other platforms that use algorithms become legally responsible publishers of content when they promote it and make it more likely to be seen than it would otherwise.

And congratulations to Ron Newman, a friend to many of us in the local online community. I got to know Ron way back in 1996, when he stepped forward and volunteered to add links to the online version of a story I wrote for The Boston Phoenix on the Church of Scientology and its critics. Ron harks back to the early, idealistic days of the internet. The digital realm would be a better place if there were more people like him.

2 thoughts on “A bogus libel suit raises some interesting questions about the limits of Section 230

  1. Steve Ross

    Agree on all points. I note that algorithms that keep feeding us stuff we crave while downgrading opposing views are indeed placing a thumb on the scale and should not be protected. But another issue is almost as bad — setting index terms (often manually) that are themselves wrong. The terms “illegal refugee” or illegal asylum seeker” to describe a border-crosser are, for instance libelous. Such border crossings are legal under USA law and international convention unless there is a working system of status adjudication that can be accessed by the asylum seeker. Used to be such a thing, pre-Trump.

  2. Na Green

    And Ron has been a boon to the local film/fillm theater community as well—through his advocacy and knowledge base.

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