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Has the Time Come to Tweak the CDA?

One major difference between publishing online and publishing in print is that the online publisher is not legally responsible for information posted by others. For this shield from liability, publishers of blogs, online newspapers and other Web sites can thank Section 230 of the Communications Decency Act. But some would argue the shield is too broad and that the time has come to tailor it more narrowly.

Two legal scholars who make this case are John Palfrey, professor at Harvard Law School and faculty director of the Berkman Center for Internet & Society, and Urs Gasser, associate professor at the University of St. Gallen and, as of Jan. 1, executive director of the Berkman Center. In their new book, "Born Digital," Palfrey and Gasser argue that the CDA should be amended in a way that would allow parents to bring negligence claims against social networking sites that fail to protect children.

In a sort of a point/counterpoint published this week on the blog Ars Technica, Palfrey debates that assertion with Adam Thierer, director of the Progress and Freedom Foundation's Center for Digital Media Freedom. Thierer begins the dialogue, saying he is troubled at the prospect of tinkering with a law that "has been crucial to the success of the Internet and the robust marketplace of online freedom of speech and expression." But Palfrey counters that the law, as written, sometimes fails to protect what the law ought to protect.

Let’s take the hypothetical case of a young person who is physically harmed after meeting someone in an online environment. The young person (or his parents, more likely, I suppose) seeks to bring suit against the service provider involved. In my view, the service provider should not have special protection from such a tort claim. Such a claim should be decided on the merits. Was the service provider negligent or not? I don’t think that the fact that the service provider is offering an Internet-based service, rather than a physically based service, should result in a shield to liability.

Thierer remains troubled. "So, what's the test?" he asks. "How far must a site operator go to guarantee 'the safety of young people' and avoid a negligence claim being filed against them?" Palfrey's answer: "My proposal would be to leave the question of negligence on the part of service providers in such situations to the tort regime. The standard would change over time as risks change and as the best practices for protecting kids change."

Their dialogue continues in too much detail to reproduce here. I'm with Thierer on this one. But I suspect the debate about Section 230 will continue to gain volume. The dialogue between these two scholars of Internet law offers a preview of coming attractions.

Posted by Robert J. Ambrogi on March 9, 2009 at 11:13 AM | Permalink | Comments (1)

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