Monthly Archives: August 2005

Can Bloggers Be Sued for Commentators’ Postings?

Several people have been kind enough to send me pointers to this Slashdot item on a blogger being sued for defamation and trade secret disclosures which were (at least primarily) committed by posters to his blog.

I’ve posted my comment on this at slashdot, but I suppose I should reprint it here too. And while we’re at it, I might as well improve and expand it a little…

Insofar as we’re concerned with liability for the commentator’s remarks, the Communications Decency Act, sec. 230(c)(1) says,

provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another
information content provider.

And, in sect. 230 (f)(3),

“The term ”information content provider” means any person or
entity that is responsible, in whole or in part, for the creation
or development of information provided through the Internet or
any other interactive computer service.

if you read the full text
of sec. 230 you will see that Congress intended fairly
broad protection; in sec. 230(f)(3) it certainly wrote in very broad
terms. Why a blog with comments would be treated differently from, say, a BBS or a chat room escapes me.

The leading case on sec. 230, Zeran v. America Online, Inc. 129 F.3d 327 (4th Cir. 1997) adopts a broad reading of it, some later cases in California state court and in the Seventh Circuit critique that breadth. And to the extent they wish to impose distributor liability as opposed to publisher liability — ie you’re liable if you keep it on line after being on notice as to the problem — there may be some merit to their critique. Even so, I think that the publisher’s liability for defamation claim is covered by sec. 230, and probably the distributor liability also.

The trade secret claim is a little harder. Congress didn’t have trade secrets in mind when it wrote sec. 230. The CDA immunity in sec. 230 doesn’t create a new protection for intellectual property claims (see 230(f)). So it’s not an open-and-shut issue on the trade secrets. Nevertheless, unlike defamation law which applies to everyone, common law trade secret duties usually fall only on those who have a duty to keep the information secret, or who misappropriated it, not on innocent third parties.

A similar rule is found in the Uniform Trade Secrets Act, although the Act creates a civil right of action against third parties who “at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who had utilized improper means to acquire it.” Whether that applies to this case is of course a factual question. I suspect it wouldn’t apply in the ordinary case of a blog comment, but might if the blogger had a special knowledge about the situation.

In law there are few certainties until after a court rules, but absent unusual facts
I think the balance here points towards a finding of non-liability both
on CDA grounds and traditional trade secret grounds where innocent
receivers of information, and especially journalists who receive
information, are not usually liable.

Update: These issues and many more are discussed EFF’s Legal Guide for Bloggers.

[Edited and re-ordered for clarity.]

Posted in Law: Internet Law | 4 Comments

Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

Law professors tend to specialize. As a result, there are lots of legal things I don’t know much about, and I try not to write about them. And there are lots of legal things I think I know something about, but I usually feel I don’t know them well enough to opine publicly. And on those few subjects I think I know best, I tend to want to write fairly long and detailed articles, not blog posts. As a consequence, I don’t tend to post legal (as opposed to political) commentary on this blog. The major exception so far has been the torture issue, which so offended me that I studied up on it to the point where I felt able to write about it, even though I don’t currently have plans to publish on it in law journals.

But here’s an exception to my rule, this time on a subject I know I don’t know well: family law (and its criminal law counterpart). It’s just that I’m curious about it.

The New York Times ran a story yesterday about a statutory rape charge being filed in Nebraska against one Matthew Koso, who is part of a couple (he: age 22, she: age 14) legally married in Kansas. The article doesn’t mention the constitutional implications at all, nor it seems does much of the blog commentary, and I’d like to know why. (Just keep in mind as you read this that I’m prepared to be told that any of the following assertions is wrong.)

I would have thought that it was settled that under the privacy jurisprudence in the Griswold line of cases (striking down a state rule banning sales of contraceptives to married persons) no state could criminalize sex between consenting married adults, even due to their ages. I presume therefore that Nebraska law doesn’t recognize the validity of the Kansas marriage, but I would have thought that this failure to recognize would violate the full faith and credit clause of the constitution:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

In the so-called “Defense of Marriage Act” Congress purported to exercise its authority under the Full Faith and Credit Clause…to allow states to deny any credit to out-of-state marriages between same-sex couples. But–even assuming that this statute conforms to the Full Faith and Credit Clause (I’m dubious)–it’s clear that the DOMA doesn’t apply here. So what is Nebraska’s authority for denying the validity of the Kansas marriage? Is it ‘public policy’? Can that suffice to void a constitutionally protected relationship? Or is it some idea that minors don’t have the same constitutional right to marry as adults, and this trumps the adult’s right not to be prosecuted for marital sex?

I’m presume there’s some good reason why the couple’s defenders, including their lawyer, are not making these constitutional arguments. Alternately, they might be making them but it’s not getting reported. Or, perhaps the prosecution iis to be based on a res ipsa loquitor claim regarding pre-marital sex?

Like I said, family law is not my field, and the facts are not utterly clear here, but I bet someone reading this either knows the answer or knows where it can be found.

Posted in Law: Con Law: Marriage, Law: Constitutional Law, Law: Criminal Law | 18 Comments

Attention Fellow Dreamhost Customers

I know that several readers of this blogs are fellow customers of Dreamhost. I’d like to ask you a favor. has a nice system by which users can vote on the service improvements they would most like to see implemented. As they put it, “Votes (strongly) influence what gets implemented, but do not 100% determine it!”

I’ve just contributed a suggestion for something I need, and I’d like to ask fellow customers to vote for it please: ‘Offer a “high cpu usage” plan.‘ If they’d do this, I could rebuild the whole blog without timeouts, and I could also fight spam more effectively.

You get to the voting booth by going to your web control panel, logging in, click on “home” in the top of the left column, then “Suggestions”.

That takes you to a page asking you to vote on a large number of suggestions, with the newest at the top. Currently ‘Offer a “high cpu usage” plan’ is third from the top. Every customer gets 40 credits worth of votes, and suggestions ‘cost’ 2-5 credits based on difficulty. Mine will cost you 4; you get the credits back if they decide to do it, or if they decide not to do it. Meanwhile, you can always take the credits back and repurpose them for a different suggestion later if you have something else you want more. So if you are not currently using your voting credits this will cost you nothing more than the time it takes to make a few clicks. Thank you.

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Opera Browser Free Registration Offer

Opera, the alternative alternative browser, is celebrating its tenth anniversary. They’ll give you a free registration code for the full, ad-free, version if you send a note to before midnight tonight.

Posted in Software | 3 Comments

How Students Choose Law Schools

I’m always interested to learn how students decide which law school to attend. This explanation is somewhat unusual:

When I first had the inkling of attending school at UM. I knew nothing about Miami – the city. So I started watching Animal Planet’s Miami Animal Police on tv. I felt it was important to know which mammals, insects, and reptiles to run away from as an initial frame of reference for everything else in the area. Apparently, from the several episodes I saw in which “flight and flee” emerged as a common, team response to crazed-animal attacks, many of Miami-Dade’s finest believe the same.

Upon gaining confidence in my knowledge of the dangers inherent in South Florida wild-life (i.e. hungry gator – bad/black-nosed Coral snake – worse), I graduated myself to CSI-Miami. That’s when I made the decision to move to Miami. Dead people in Chicago, D.C., New York are invariably overweight, pale and pasty. But in Miami, corpses have the greatest bods and tans.

Then again…hot bodies and crazed wild critters does capture some of what makes Miami different. But only some.

Posted in Law School | Comments Off on How Students Choose Law Schools

I Spot a Trend

It seems to me that there are a number of connections (not all of them wonderful, either) between this Swedish library initiative to allow library patrons to check out living people for a 45-minute chat and this London Zoo exhibit.

Posted in Kultcha | Comments Off on I Spot a Trend