By Peter Van Valkenburgh
A Bill’s been floated in the Illinois State Senate that seeks to put an end to anonymous commenting on websites and blogs. The full text is here here: http://legiscan.com/IL/text/SB1614
But here’s the juicy part:
“Section 10. Anonymous internet poster; right to know. A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests clearly visible in any sections where comments are posted.”
The first thing to note is that the text of this bill is word-for-word identical to a bill floated last year in the NY State Legislature (more here: http://www.wired.com/threatlevel/2012/05/anonymous-online-speech-ban/). Is this just a case of copy-cat legislators or are some enterprising torts lawyers shopping a bill state-by-state? As we’ll see, the passage of such a bill would greatly increase a lawyer’s client-base should they just so happen to specialize in defamation and electronic communications.
This brings us to why these bills might be repeatedly cropping up. Given the present state of the law those harmed by online comments have absolutely no possibility of legal relief (damages or injunction) should they be unable to determine the identity of their virtual assailant. Section 230 of the Communications Decency Act provides near bullet-proof immunity to the interactive services (read: yelp, facebook, blogs) that solicit and display user-generated content (“UGC”) like blog comments. These sites are not required to remove and can’t themselves be sued for UGC that is defamatory (see Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997)), or in violation of other state laws — like right to personality claims, right to privacy claims, state prohibitions on sexually explicit advertising (see Doe v. AOL, 783 So. 2d 1010, 1013-1017 (Fl. 2001)), false information (see Gentry v. eBay, 99 Cal. App. 4th 816, 830 (2002)), discriminatory housing ads (see Chicago Lawyers’ Committee v. Craigslist 519 F.3d 666 (7th Cir. 2008)), or threats (see Delfino v. Agilent Technologies, 145 Cal. App. 4th 790 (2006)).
Effectively, CDA 230 immunizes the electronic republishers and distributors of content from all liability stemming from UGC (except liability under federal criminal law (see 47 U.S.C. ยงยง 230(e)(1)) or federal copyright law (see id. at (e)(2))). So, if you are somehow harmed by UGC and the remedy for that harm would be under state law, your only option is to sue the original author of the content. Trouble is, most of the particularly offensive or damaging UGC out there is, for this very reason, anonymously posted.
With the full legal picture in mind, it is clear why some lawmakers (or the enterprising young defamation lawyers who probably drafted both of these bills) are trying to force UGC contributors to identify themselves. Moreover, to be clear, this wouldn’t just force the identification of comment trolls on blogs — this would “out” yelp reviewers, social networking posters, wikipedia editors, basically the whole kit-and-kaboodle of web 2.0 contributors. Accordingly, you could finally identify and sue the dissatisfied diner that wrote a scathing Yelp review about your restaurant, or the the unhappy couple who claims on Angie’s List that your plumbing company flooded their basement. Moreover, even if your defamation claim isn’t great, you could probably scare them into removing the content or settling by merely raising the spectre of costly litigation.
I can appreciate arguments that the CDA’s sweeping section 230 immunities need to be revisited in light of the complete inability of genuine UGC victims to legally compel intermediaries to remove truly damaging content. But these proposals don’t touch the CDA; instead, they strike at the core of our first amendment right to freely speak in the manner we so choose. Your choice to identify or not is a part of the content of your speech (see McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)) . Requiring that all electronic speech include identification is no different than any other sort of content-based restriction on speech. It’s unconstitutional and antithetical to the preservation of a flourishing democracy and a flourishing online marketplace of ideas.