Dark Bilious Vapors

Speaking of comments and commentators [we *were* weren't we???] – I had come across this interesting *aside* over at Discourse.net from Michael Froomkin:

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,

No 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.]

Karen on 09.06.05 @ 10:57 AM CST