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Internet Service Provider Liability for Defamation

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Internet Service Provider Liability for Defamation INTERNET SERVICE PROVIDER LIABILITY FOR DEFAMATION: UNITED STATES AND UNITED KINGDOM COMPARED by AHRAN PARK A DISSERTATION Presented to the School of Journalism and Communication and the Graduate School of the University of Oregon in partial fulfillment of the requirements for the degree of Doctor of Philosophy March 2015 DISSERTATION APPROVAL PAGE Student: Ahran Park Title: Internet Service Provider Liability for Defamation: United States and United Kingdom Compared This dissertation has been accepted and approved in partial fulfillment of the requirements for the Doctor of Philosophy degree in the School of Journalism and Communication by: Kyu Ho Youm Chairperson Timothy Gleason Core Member Kim Sheehan Core Member Ofer Raban Core Member Daniel Tichenor Institutional Representative and J. Andrew Berglund Dean of the Graduate School Original approval signatures are on file with the University of Oregon Graduate School. Degree awarded March 2015 ii © 2015 Ahran Park iii DISSERTATION ABSTRACT Ahran Park Doctor of Philosophy School of Journalism and Communication March 2015 Title: Internet Service Provider Liability for Defamation: United States and United Kingdom Compared Since the mid-1990s, American Internet Service Providers (ISPs) have enjoyed immunity from liability for defamation under Section 230 of the Communications Decency Act. As Congress originally intended in 1996, Section 230 has strongly protected freedom of online speech and allowed ISPs to thrive with little fear of being sued for online users’ comments. Such extraordinary statutory immunity for ISPs reflects American free-speech tradition that freedom of speech is preferred to reputation. Although the Internet landscape has changed over the past 20 years, American courts have applied Section 230 to shield ISPs almost invariably. ISPs won in 83 of 85 cases in 1997 to 2014. Nearly all types of ISPs have been held to be eligible for immunity unless they are original online speakers. Even when ISPs have operated websites that have left digital “scarlet letters” on individuals, they have not been liable if the ISPs did not “create or develop” the defamatory contents. Bloggers, as website operators, could be immunized even when they exercised the “traditional editorial functions” unlike the traditional journalists. By contrast, ISPs in the United Kingdom could not enjoy such absolute immunity. iv Following the U.K. tradition of plaintiff-friendly libel law, the Defamation Act 1996 did not adopt any separate provision for ISP liability. Under Section 1, ISPs in England are subject to liability for defamation by third parties if they are notified of harmful online contents but fail to remove the postings promptly. Meanwhile, the new Defamation Act 2013 includes a separate provision for ISP liability. Section 5 is novel because ISP liability hinges on whether the original speaker is identifiable. I suggest that CDA Section 230 of the United States should be revised. One possible way of revising Section 230 is borrowing from the U.K. Defamation Act 2013. But such adoption is not compellingly urgent. It needs time to see what impact the new U.K. defamation law will have on freedom of speech. Regardless, the U.K. experience with ISP liability will provide a useful comparative framework to rebalance free speech with reputation on the Internet. v CURRICULUM VITAE NAME OF AUTHOR: Ahran Park GRADUATE AND UNDERGRADUATE SCHOOLS ATTENDED: University of Oregon, Eugene Seoul National University, Seoul, Republic of Korea DEGREES AWARDED: Doctor of Philosophy, Communication and Society, 2015, University of Oregon Master of Arts, Communication Studies, 2006, Seoul National University Bachelor of Arts, Business Administration, 1996, Seoul National University AREAS OF SPECIAL INTEREST: Media Law and Policy Journalism International Communication PROFESSIONAL EXPERIENCE: Adjunct Instructor, Seoul National University, 2010 – Present Graduate Teaching Fellow, School of Journalism and Communication, University of Oregon, Eugene, Oregon, 2006-2010 News Reporter, Chosun Daily Newspaper, Seoul, Republic of Korea, 1996-1999 GRANTS, AWARDS, AND HONORS: Graduate Teaching Fellowship, School of Journalism and Communication, University of Oregon, 2006-2010 Columbia Scholarship, School of Journalism and Communication, University of Oregon, 2007-2010 Top Three Paper Award, International Communication Association, 58th Annual Convention, 2008 vi PUBLICATIONS: Park, Ahran. “Current Issues on Freedom of Expression in South Korea.” Kwanhun Journal (2015, forthcoming) (Korean). Park, Ahran. Freedom of Expression on the Internet. Seoul: Communication Books, 2014 (Korean). Park, Ahran. “Korean Media Law Update: Key Statutes Revised.” Media & Art Law Review 15(1) (2010): 111-23. Park, Ahran, and Kyu Ho Youm. “International Defamation and Privacy: Korea.” In Carter-Ruck on Defamation and Privacy, Edited by Alastair Mullis and Cameron Doley, 6th ed, London: LexisNexis, 2010. Park, Ahran, and Kyu Ho Youm. “International and Comparative Journalism Law.” In Encyclopedia of Journalism, Edited by Christopher H. Sterling, 758- 61. London: Sage Publications, 2009. Park, Ahran. “Fair Trial and Freedom of the Press.” In International Encyclopedia of Communication, Edited by Wolfgang Donsbach, 1713-16. Malden, MA: Blackwell Publishing, 2008. Park, Ahran. “Photos and Personal Rights Regarding American News Reports.” Press Arbitration (Spring 2008): 18-28 (Korean). vii ACKNOWLEDGMENTS I would like to express my sincere gratitude to Dr. Kyu Ho Youm for being a committed and supportive adviser during my doctoral years at the University of Oregon. I deeply appreciate his intellectual insights as well as his teachings about life. I will be forever grateful to his genuine care and thoughtful advice. I wish to thank the members of my dissertation committee, Dr. Timothy Gleason, Dr. Kim Sheehan, Dr. Ofer Raban, and Dr. Daniel Tichenor for their valuable input. Also, my profound thanks to Dr. H. Leslie Steeves, senior associate for academic affairs at the UO School of Journalism and Communication, who has encouraged me to do my best during my journey toward a Ph.D. In addition, I am thankful to Mrs. Bokim Youm for her generosity. My family will not forget her Thanksgiving party to which we got invited every year. Many thanks to my UO cohorts, especially to Alina Padillar-Miller, who has enabled me and my son, Jaeyun, to enjoy the kids soccer, the sunshine, and the balloons in Eugene. Meanwhile, I owe so much to my wonderful parents and parents-in-law for their understanding and support. Finally, I would like to dedicate this dissertation to my husband, Hwaseok, and my son, Jaeyun. I could not have finished my doctoral study without their constant love and smile. viii To my loving family, Hwaseok and Jaeyun, for their unwavering support ix TABLE OF CONTENTS Chapter Page I. INTRODUCTION ................................................................................................... 1 A. Research Statements ........................................................................................ 7 B. Research Questions .......................................................................................... 13 C. Review of Literature ......................................................................................... 14 D. Methodology .................................................................................................... 28 E. Significance and Scope ..................................................................................... 31 F. Outline of the Study ......................................................................................... 34 II. FREEDOM OF EXPRESSION AND THE INTERNET ...................................... 36 A. Freedom of Speech and the Press: A Theoretical Framework ......................... 39 B. Free Speech in Cyberspace .............................................................................. 49 C. Summary and Conclusions ............................................................................... 74 III. DEFAMATION LAW IN THE UNITED STATES ............................................ 76 A. Elements of Defamation as a Tort .................................................................... 78 B. Defenses ........................................................................................................... 84 C. Sullivan and Its Progeny: Constitutionalizing Libel Law ................................ 94 D. Summary and Conclusions ............................................................................... 103 IV. DEFAMATION LAW IN THE UNITED KINGDOM ........................................ 105 A. Elements of Defamation as a Tort .................................................................... 107 B. Defenses ........................................................................................................... 112 C. Reynolds and the Public Interest Defense ........................................................ 120 x Chapter Page D. Summary and Conclusions ............................................................................... 131 V. ISP LIABILITY FOR DEFAMATION IN THE UNITED STATES ................... 132 A. Statutory Law .................................................................................................. 134 B. Case Law .......................................................................................................... 145 C. Summary and Conclusions ..............................................................................
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