New Jersey prosecutors have subpoenaed the controversial gossip site JuicyCampus as part of an investigation into whether the site is violating the New Jersey Consumer Fraud Act. Reports (here, here, and here) indicate that prosecutors believe that the website may be running afoul of the law by suggesting in its Terms & Conditions that it does not allow the posting of offensive material but providing no enforcement of that rule or way for users to report objectionable content. (New Jersey authorities also subpoenaed AdBrite and Google for information about how JuicyCampus represented itself to these advertising services.) Assuming the investigation moves forward, this case is sure to be a flashpoint for further debate about section 230 of the Communications Decency Act (CDA 230).
CDA 230 protects providers and users of "interactive computer services" from liability for the statements of third parties. As the dismissal of the recent iBrattleboro case illustrates, this means that your average website operator or blogger can publish user comments without fear of being sued for defamation, invasion of privacy, and other civil wrongs (other than intellectual property claims). This also means that JuicyCampus generally is immune from liability for statements posted by its users. From the International Herald Tribune:
"Legally, Juicy Campus is fully, absolutely immune, no matter what it runs on its site from users, just like AOL is not responsible for nasty comments in its AOL chat rooms," said Michael Fertik, a graduate of Harvard Law School and the founder of reputationdefender.com, a service that helps clients remove defamatory material about themselves from the Internet.
Note that CDA 230 applies to state criminal charges as well as civil wrongs, so it could protect JuicyCampus from claims related to its users' content if New Jersey ultimately brings a case. The state would undoubtedly argue that the problem is what the website itself says in its Terms & Conditions, not what its users say. This argument might work, but it looks like a rhetorical flourish with the legal claim still directed towards JuicyCampus in its publishing, editorial, and screening capacities, which is CDA 230 heartland. See Doe v. MySpace, 474 F.Supp.2d 843, 849-50 (W.D. Tex. 2007).
Whether it is a good thing for CDA 230 to protect JuicyCampus is entirely debatable. As I've argued before, CDA 230 has provided vital breathing space for the development and operation of the interactive Internet, but it also leads to perverse and unjust results in particular cases (which generally is a weak point of legal rules versus legal standards). JuicyCampus is a good example of where CDA 230 leads to a questionable result, and it's similar to AutoAdmit in that regard. The site flaunts its capacity for the scandalous ("Always Anonymous . . . Always Juicy . . . "), and its Privacy & Tracking Policy assures users that their identities cannot be traced in a way that is above-and-beyond the call of duty. While there is nothing explicit, the whole enterprise exudes an undercurrent of encouragement or inducement to libel. It is arguably unjust that a website operator can enjoy the protection of CDA 230 while (1) building a whole business around people saying nasty things about others, and (2) affirmatively choosing not to track user information that would make it possible for an injured person to go after the person directly responsible.
This raises the question whether we should craft a Grokster-style inducement exception to CDA 230, whether through the courts (as Judge Kozinski tried to do in the Roommates.com case with his harassthem.com hypothetical) or through amendment of the statute by Congress. While such an exception might be intuitively appealing, it also raises thorny questions. What would the standard be? As Eric Goldman pointed out on the CyberProf listserv this week, "every website that publishes user-submitted content will foreseeably attract defamatory submissions," so surely foreseeability cannot form a significant part of the test. What about deliberately refusing to remove content when someone complains? OK . . . but one of the greatest benefits of CDA 230 is that it frees website operators from having to make constant judgment calls about whether or not particular statements are defamatory. If we required websites to make these calls, the knee-jerk reaction would be to take down "gray area" material that might be important, socially valuable discussion.
Nevertheless, I'm not wholly pessimistic about the prospects for creating a new immunity standard. There does seem to be a line that JuicyCampus has crossed in terms of encouraging its users to commit libel, and it's not beyond human reason to identify that line (although I'm not going to hazard it now). And Congress could conceivably condition immunity on creating and retaining logs that would help tie particular IP addresses to specific comments. I'm sure there are other possible solutions.
One final point: what's with the New Jersey prosecutors' crazy consumer fraud theory? The JuicyCampus Terms & Conditions do indeed require users to agree not to post material that is "unlawful, threatening, abusive, tortious, defamatory, obscene, libelous, or invasive of another's privacy," but it's hard to see how this is a representation on the part of the website about, well, anything. The Terms require a user not to post bad content, but also give JuicyCampus the "sole discretion" to decide whether or not to do anything about it:
You acknowledge that JuicyCampus does not pre-screen Content, but agree that JuicyCampus shall have the right (but not the obligation) to access, re-arrange, modify and remove or restrict access to any Content on the Site in its sole discretion and without notice or compensation. Without limiting the foregoing, JuicyCampus shall have the right to access and remove or restrict access to any Content that violates this Agreement or that JuicyCampus believes is otherwise objectionable, in its sole discretion.Moreover, I'm having trouble identifying the consumers who are being misled by these Terms. Are they the victims of defamation who have never visited the site or read the Terms? Are they the site users who agreed to abide by the Terms but posted nasty stuff anyway? And, perhaps most saliently, are these allegedly misled consumers brain dead? "Always Anonymous . . . Always Juicy . . . "? Give me a break.