What NBC Universal was thinking when it decided to not merely point to Teri Buhl, but attribute credibility to her, may never be known, now that dismiss of defamation claims against Buhl, and by extension, NBC, has been affirmed on appeal. And it shows the vitality of the Safe Harbor provision, even in the face of such dubious conduct.
Wait. Teri Buhl? This Teri Buhl? Yup. That’s the one. The Teri Buhl of “publish my twits and I’ll sue you” fame. Because her twits are special. After all, she is an “investigative journalist,” and it doesn’t get much cooler than that. To be fair, not only did Buhl think well of her mad investigative journalist skillz, but NBC did too.
In December, 2011, and January, 2012, Teri Buhl published several online news articles containing defamatory statements about the plaintiff on her website. On January 6, 2012, John Carney, a senior editor for cnbc.com, published an online article entitled, ‘‘The Sex and Money Scandal Rocking Hedge Fund Land’’ on www.cnbc.com, a website owned and operated by the defendant. Carney’s article referred to Buhl as a ‘‘veteran financial reporter’’ who ‘‘knows her way around the Connecticut hedge fund beat,’’ and urged viewers to read Buhl’s articles by stating, ‘‘I don’t want to steal Buhl’s thunder, so click on her report for the big reveal.’’ The word ‘‘report’’ was a hyperlink to Buhl’s online articles containing the defamatory statements.
So while it was Buhl who wrote the “defamatory statements,” it was Carney who promoted Buhl’s post, who lent the credibility of CNBC to her words by wrapping her up in a “knows her way around” ribbon, and gave her the platform so that her “defamatory statements” would be read by a great many rather than the twelve plus her cat that might otherwise see Buhl’s posts.
And the court affirmed dismissal under Section 230.
The interesting aspect of the argument relates to Carney’s involvement in Buhl’s post, and this is a matter that a great many “content providers” fear. For example, if bloggers actively clean up the mess in their comments, do they become responsible for the content or are they still protected by Section 230’s safe harbor? Or if they link to content and rely on it to provide further comment, are they assuming liability for the original content?
We conclude that the meaning of ‘‘development in part,’’ as defined in case law interpreting the language of § 230 (f) (3), covers conduct ranging from ‘‘material contribution’’ to ‘‘solicitation’’ of the information at issue.
The plaintiff has not alleged any actions, individually or in combination, from which to conclude that the defendant ‘‘materially contributed,’’ ‘‘prompted,’’ ‘‘specifically encouraged,’’ ‘‘apparently requested,’’ or ‘‘actively solicited’’ the defamatory statements in Buhl’s articles. Rather, the actions alleged by the plaintiff are fairly characterized by him to have ‘‘amplified,’’ ‘‘endorsed,’’ and ‘‘adopted’’ those statements.
It is immaterial whether the defendant amplified, endorsed, or adopted the defamatory statements, because the defendant played no role in their composition.(Emphasis added.)
This is a critical distinction, and without it, it would be impossible for content providers, including bloggers, to allow anyone other than themselves to express themselves online. Let’s face it, I’m not taking a hit for defamation so that you can write whatever craziness pops into your heads. While I am fully responsible for the posts I create, I will not take responsibility for yours.
And for anyone who wants the internet to remain a place where interactive speech exists, where you can tell the New York Times to bite you, or tell me that I dress funny, then the safe harbor of Section 230 is critical.
While there are some who contend that its safe harbor is too safe, too protective of nutjobs, liars and haters, and must give way to a means of stopping content providers from allowing anything by making the provider culpable for the words, images, thoughts and ideas of others that displease people, the result will be an internet that looks nothing like the one that now exists.
There is no question that harm happens, and that harm is real. The problem is that no one has as yet come up with a mechanism that would prevent the harm without chilling anything that would remotely cause liability to those of us who provide a platform for expression. It has nothing to do with how defamatory (or not) Teri Buhl’s post was, or the terrible, horrible (insert adjective of choice) damage caused by the wrong. There are very real, very harmful wrongs committed. Yes, there are trivial wrongs as well, which are hyped up by breathless whiners, but that doesn’t diminish the real ones.
And yet, without the full panoply of protections offered by Section 230, there is no way the internet can continue to serve as a platform for expression without risk of massive liability. Should someone come up with a brainstorm that would magically only stop bad stuff without chilling unbad stuff, I’m all ears. Until then, even a dumbass like Carney needs to be protected for bolstering the cred of someone as unworthy as Buhl, because that’s how the internet happens.
H/T Eugene Volokh at WaPo Conspiracy