Michael Scott - Should Victims Of Online Defamation Have A "Right Of Reply"?

Increasingly, courts and commentators are expressing frustration over the immunity that websites have for defamatory statements made by anonymous third parties.  The victim cannot sue the website owner due to Section 230 of the Communications Decency Act, and often cannot identify the third party that defamed them.  To add insult to injury, a court recently held that Section 230 prohibits a court from ordering the website to take down the defamatory statement even after the poster has been found guilty of defamation:

"The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that Xcentric falls within those limited conscriptions based on the facts presented here." Blockowicz v. Williams, 675 F.Supp.2d 912, 915 (N.D. Ill. 2009).

One possible solution would be to amend Section 230 so that a website would continue to enjoy immunity from third party defamations posted on their site, conditioned on the website owner offering the victim a “right of reply.”  If the website owner refused to do so, then it would lose its Section 230 immunity.

This is similar to the Digital Millennium Copyright Act (DMCA), that conditions immunity from copyright infringement claims on the website owner’s obligation to comply with the notice and takedown procedures of the Act.  The website owner can choose not to comply, but will lose its immunity from copyright infringement claims.

While the U.S. Supreme Court has held that a mandatory right of reply statute violated the First Amendment (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)), no case has ever found that a voluntary right of reply statute would not be found constitutional.

Obviously, a right of reply should not be open-ended, since it could be misused, as the DMCA notice and takedown provisions have been misused, to stifle certain positions or promote a particular point of view, instead of merely replying to a defamatory statement.  But that is simply a matter of fine tuning the text of whatever legislation might be enacted.

Do I expect a right of reply amendment to be introduced in Congress in the near future?  Probably not.  But if the perceived shortcomings of the current Section 230 continued to be emphasized by the courts and commentators, at some point someone in Congress will take note.  The danger is that Congress may not merely stop at amending Section 230 immunity, but repeal it entirely.  That would be devastating.