Former New York Times and Vanity Fair journalist David Margolick has a long and detailed article about the litigation against the AutoAdmit message board by two Yale Law School students who were targeted for harassment by the commenters there. (h/t Brian Leiter.)
My views on this topic have changed somewhat as I have learned more from colleagues like Danielle Citron, Dan Solove, and Ann Bartow about the impact of these cyberbullying mobs on their victims. But I am still afraid the response will be a dramatic evisceration or even elimination of Section 230 immunity. We might end up with some kind of notice-and-takedown regime that could be abused just as it is in the DMCA setting, allowing anyone to effectively force the elimination of web content they dislike with the mere untested allegation that it was tortious. Worse, we might see an effort to repeal section 230 altogether, making it impossible to run an open online forum for user-generated content without risking significant liability.
Reading the article, it also struck me that the true problem may lie in substantive law of defamation or intentional infliction of emotional distress, not internet law. After all, Margolick reports how in the AutoAdmit case, even when the plaintiffs identified the nasty bullies responsible for such offensive and malicious postings, they have had trouble proving their claims under tort theories. Whatever happens to 230, there can’t be secondary liability where there is not primary liability. Maybe the real problem is that defamation and IIED have become so toothless?
These are not simple issues. Those colleagues I mentioned, and others like Mark Lemley (who represents both the AutoAdmit plainitffs and Google), have tried to puzzle through the right solutions. I am really only certain of one point: anyone who thinks the answer is simple is mistaken.