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Zeran V. AOL 20Th Anniversary Essays Zeran The Recorder presents a series of essays20 commemorating the 20th anniversary of Zeran v. AOL. AOL Commemorating the 20th Anniversary of Internet Law’s Most Important Judicial Decision Introducing a series of essays curated by Eric Goldman and Jeff Kosseff about the seminal internet law case Zeran v. AOL. Jeff Kosseff (left) is an assistant professor of cybersecurity law at the United States Naval Academy. Eric Goldman (right) is a Professor of Law By Eric Goldman and Jeff Kosseff at Santa Clara University School of Law in the Silicon Valley. November 10, 2017 any factors contributed to the Internet’s editorial control over third party content, and even when growth over the past 25 years, but we’d like to the online publisher fails to respond to takedown notices. highlight an underappreciated catalyst. In 1996, Due to its timing and its breadth, the Zeran opinion had an Congress enacted a law, 47 U.S.C. §230, to enormous influence on subsequent courts’ interpretations immunize websites from liability for third-party of §230, leading them to apply the statutory immunity Mcontent. Section 230 is an “Internet exceptionalist” law; expansively across a wide range of circumstances. Congress made the liability rules for online content dif- Together, §230 and the Zeran ruling helped create a ferent from, and more favorable than, the rules for offline trillion-dollar industry centered around user-generated content. content. Because of its influence on such a key issue, the Section 230’s immunity from liability for third-party Zeran ruling is widely considered the most important Inter- content has provided the foundation for the Internet we net Law ruling ever. know today. Each of the top 10 U.S. websites relies heavily It is also a controversial opinion, and debates about the on third party content and, in turn, §230. ruling’s conclusion and implications continue to this day. Editor’s Note: This is a collection of essays submitted Indeed, Congress is currently considering making its first by internet law scholars and attorneys about Section 230 major substantive reduction to §230’s immunity, and much and the legacy of Zeran v. AOL. Continue scrolling down for of the debate over these proposals revisits the mid-1990s’ links to the full articles. policy debates over how best to reduce anti-social behavior However, the scope of §230’s immunity wasn’t neces- online. Despite the passage of time and evolution of tech- sarily clear from Congress’ words, which are characteristi- nology, the underlying policy questions remain as fresh cally inscrutable. Instead, §230’s implications first became and important as they were two decades ago. clear from the first appellate court opinion interpreting it, Zeran was decided 20 years ago-on Nov. 12, 1997. To the Fourth Circuit Court of Appeals’ ruling in Zeran v. AOL. commemorate this anniversary, we asked nearly two dozen The Zeran case involved a pernicious cyber-harassment experts in Internet Law to share their thoughts about the attack. An unknown perpetrator posted inflammatory mes- case. We invited authors with normative views that span the sages to AOL purporting to be from Zeran, which prompted §230 debate, so the group of authors includes both fans and outraged readers to bombard Zeran with angry phone calls. opponents of the Zeran ruling and §230 generally. The Fourth Circuit concluded that §230 protected AOL from Their essays generally fit into two categories. Some liability for publishing the inflammatory messages. essays take a historical approach, explaining how we got The Zeran case interpreted §230 quite broadly, provid- §230 or the Zeran ruling. The other essays discuss the ing liability immunity even when online publishers exercise legacy and impact of the Zeran ruling over the past two de- This article first appeared in the November 10, 2017 issue of The Recorder. cades, some enthusiastically celebrating the developments and others issuing stinging criticisms and calls for reform. We learned a lot from this collection of essays, and we hope you will too. Zeran The Recorder presents a series of essays20 commemorating the 20th anniversary of Zeran v. AOL. AOL ‘Zeran v. AOL’ and Its Inconsistent Legacy Ian Ballon discusses the differing approaches to how the Fourth Circuit’s ruling in ‘Zeran v. AOL’ is applied in different circuits. By Ian C. Ballond In January 1996, shortly after it was enacted, I wrote one of Ian C. Ballon is an Internet litigator and co-chair of Greenberg Traurig’s the first articles on the Good Samaritan exemption created Global Intellectual Property & Technology Practice Group. He also serves by the Telecommunications Act of 1996 (47 U.S.C. §230(c)— as Executive Director of Stanford Law School’s Center for e-Commerce and is the author of the five-volume legal treatise, E-Commerce & Internet popularly referred to as the Communications Decency Law: Treatise with Forms 2d Edition (Thomson Reuters West, www.ian- Act or CDA), correctly arguing that it preempted claims ballon.net). The opinions expressed in this article are solely those of the against interactive computer service providers and users, author. not merely for defamation, but for a broad array of claims. I did not, however, envision that subsection 230(c)(1) would who then allegedly abused them, by the widows of personnel be construed as broadly as it has been over the past two killed by ISIS, and by victims of sex traffickers against publish- decades, or that subsection 230(c)(2) would be applied as ers of online classified ads that led to their victimization. It infrequently. Indeed, when the district court and then the has also been held to preempt claims by a tort victim against circuit court decided Zeran v. AOL, I was critical of their an- the Internet service where the plaintiff’s assailant had al- alytic approach, as some may remember from early articles legedly purchased the gun used against him, against a social in The Cyberspace Lawyer. network for failing to promptly remove a profile that allegedly The law, however, is written by courts, not commentators, led to violence, for failing to act to prevent statements made and the rule of Zeran has been uniformly applied by every in a chatroom, and for strict product liability and related federal circuit court to consider it and by numerous state claims brought against eBay for transactions between users courts. And it has never been rejected in any precedential of its platform. See Ian C. Ballon, E-Commerce & Internet Law: opinion. Indeed, it is perhaps a fitting tribute to the viability Treatise with Forms 2d ed. §37.05[1][C] (enumerating cases). of Zeran that 20 year later the U.S. Court of Appeals for the There are, however, differing approaches to how the U.S. Ninth Circuit, in its 12th opinion construing the CDA, barely Court of Appeals for the Fourth Circuit’s ruling in Zeran v. spent even a sentence affirming dismissal of a defamation AOL is applied in different circuits. claim brought against Facebook over user content, pursuant Most circuits construe the CDA broadly, consistent with to the CDA and the rule first developed in Zeran. See Caracci- Zeran. See, e.g., Doe No. 1 v. Backpage.com, 817 F.3d 12, 18-24 oli v. Facebook., _ F. App’x _, 2017 WL 2445063 (9th Cir. 2017). (1st Cir. 2016) (affirming dismissal of claims for civil remedies The broad preclusive effect of the CDA recognized by under the Trafficking Victims Protection Reauthorization Act, Zeran has been extended beyond mere defamation cases to 18 U.S.C.A. §1595, and Massachusetts Anti-Human Trafficking an array of disputes where third parties seek to hold Internet and Victim Protection Act of 2010, Mass. Gen. Laws ch. 265, sites or mobile app providers liable for the misconduct of §50); Obado v. Magedson, 612 F. App’x 90, 91-94 (3d Cir. 2015) users. Because conduct online takes the form of content—as (affirming dismissal for failure to state claims for defamation, users act through key strokes, smart phone virtual buttons intentional and negligent infliction of emotional distress and and emoji— the CDA has been applied where conduct ulti- invasion of privacy against various service providers, search mately is premised on user content. Thus, for example, courts engines and domain name registrars for republishing and have held that the CDA preempts claims by parents against allegedly manipulating search engine results to maximize the Internet sites and services where children have met adults impact of allegedly defamatory content, based on the CDA); This article first appeared in the November 10, 2017 issue of The Recorder. Doe v. MySpace, 528 F.3d 413, 420 (5th Cir. 2008) (rejecting the CDA otherwise would not require, such as removing the assertion that MySpace could be held liable for failing to user content); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) implement measures that allegedly would have prevented (carving out a narrow exception when a communication a minor from being contacted by a predator, and stating republished by a defendant was not originally intended for that these “allegations are merely another way of claiming publication). that MySpace was liable for publishing the communications Courts also have taken differing approaches to the and they speak to MySpace’s role as a publisher of online question of what constitutes a claim pertaining to intel- third-party-generated content.”); Jones v. Dirty World lectual property, within the meaning of section 230(e)(2), Entertainment Recordings, 755 F.3d 398 (6th Cir. 2014) which creates an exclusion to the otherwise broad preemp- (vacating and reversing a jury award for the plaintiff over tion provisons set forth in sections 230(c)(1) and 230(c)(2).
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