There are still many attorneys making money representing clients on Internet defamation cases that can’t be won. They are either ignorant of the law, or ignoring it. My firm has been schooling others on the Communications Decency Act for years. See, for example, Winning the Fight for Freedom of Expression on the Internet and A Victory Against Spam. But there are still a number of firms that still need an education. A case just came down in New York, where someone tried to sue a web host for the comments posted on his website.
Let’s all say it together. If a website is created that allows visitors to post their comments, under the Communications Decency Act the host of that website cannot be held liable for any defamatory remarks that others post. The law is very black and white in this area. The myth still continues that if the defamed party makes the website operator aware of the defamatory material, he somehow becomes liable for failing to take it down. That is simply not true.
There is a lot of abuse on the Internet, and ideally a web host should respond to requests to remove defamatory posts, but if that were made the law then the ability to host a community forum would disappear in almost all instances.
Consider a helpful, innocent person who decides to start a restaurant forum, discussing the local businesses. Someone goes on and leaves a post that a local sushi restaurant is using old fish. The sushi restaurant contacts the host, and insists that the post be taken down, claiming they use nothing but fresh fish. How would our hypothetical web host go about investigating such a claim? Is he required to go to the restaurant and inspect the receipts to determine the freshness of the fish? Must he insist that the poster provide proof of the old fish?
Most likely, if faced with civil liability, the host would simply take down the post. And when reviewing all the protests became too time consuming, the forum would disappear. The day Congress passes a law requiring website operators to verify all the claims made by visitors to their sites is the day that most free speech ends on the Internet. Many would prefer that, but in my opinion the open approach is the better approach.