Category Archives: media law

A Look at Zeran v. AOL & Barnes v. Yahoo!

Less than a week after the 1995 Oklahoma city bombing, an anonymous post on AOL’s website appeared advertising t-shirts. The shirts made references to the loss of children in the bombings, including phrases such as “finally, a daycare center that keeps the kids quiet,” and “Visit Oklahoma, it’s a BLAST.” The advertisement listed the business phone number of a then unknowing Kenneth Zeran.

Images of the t-shirt slogan.

Images of the t-shirt slogan.

Zeran received a barrage of threatening phone calls. Learning of the ad posted with his phone number, he asked AOL to take it down, which they did. However, a new ad reappeared shortly after, again citing Zeran’s phone number to contact to buy the offending shirts. Zeran soon found himself the target of threatening phone messages and the anger of a conservative talk radio host. His home was placed under protective surveillance and was unable to use his business phone number. In 1996, Zeran filed suit against AOL.

The case brought up the issue of whether an online service like AOL could be held liable for defamation by a third party. Though the ad was published on AOL, it had to be decided whether or not AOL fell under 46 USC 230 if of the Telecommunications Act of 1996. The act held that “No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,” thereby immunizing AOL from charges of slander or defamation. The U.S. District Court for the Eastern District of Virginia at Alexandria dismissed Zeran’s complaint, and though he appealed to other courts, he was denied.

Source eff.org. Source eff.org.

A similar case to compare this one to is Barnes v. Yahoo!, Inc. The case arose in 2004 after Cecilia Barnes had broken up with her boyfriend, and her now ex-boyfriend proceeded to put up fake profiles of Barnes on Yahoo!’s public pages, using photos unknowingly taken of Barnes and even pretending to be her in chat rooms. Barnes discovered this after being approached for sex from men who had visited the pages.

Barnes emailed Yahoo! to have the pages removed, and then sent in a copy of her photo identification and a signed statement explaining her situation. Despite repeated requests, Yahoo! did not respond until a local news report was about to air the story. The company’s Director of Communications told her it would be taken, but two months later the profiles remained online, and so Barnes decided to file a lawsuit. The case went to an Oregon district court.

Seal for the United States Court of Appeals for the Ninth Circuit. Seal for the United States Court of Appeals for the Ninth Circuit.

The debate at court was whether or not USC 230 also applied to this case, which is what Yahoo! argued for. Barnes argued that it didn’t, but rather that it fell under Section 323 of an Oregon torts claim, which states “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking,” and that Yahoo! failed to prevent harm from resulting under its care of Barnes by not taking down her profiles when expected to.

The court ruled that USC 230 did in fact leave Yahoo! immune to being liable. However, when brought to the United States Court of Appeals for the Ninth Circuit, it was decided that Barnes’ allegations might support a claim for promissory estoppel and held that section 230 would not stop this.

The impact of these decision is that it can allow certain websites to be immune to defamation cases. The question then is, how responsible are these third party internet services? Is it no different than a grocery store dealing with someone consistently and anonymously putting up a slanderous poster on its walls? Or because it must be posted through the site, does that make that site responsible? Whatever the case, USC 230 has changed the lawful nature of these sources.

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