If man will strike, strike through the mask: Striking through section 230 defenses using the tort of intentional infliction of emotional distress

Columbia Journal of Law and Social Problems

Volumn 44, Issue 2, 2010, Pages 193-233

  Zharkovsky, Daniel ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 79952956229     PISSN: 00101923     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (419)

1. Mattathias Schwartz, Malwebolence, N.Y. TIMES MAG., Aug. 3, 2008, at 24, 26.
2. Id.
3. Id.
4. Id.
5. Id.
6. Id. ("In the late 1980s, Internet users adopted the world 'troll' to denote someone who intentionally disrupts online communities."). Fortuny is part of an Internet group called Anonymous. Id.; see also infra note 154 and accompanying text.
7. Schwartz, supra note 1, at 26.
8. See Doe v. Fortuny, CITIZEN MEDIA LAW PROJECT (Aug. 8, 2008), http://www.citmedialaw.org/threats/doe-v-fortuny.
9. In the interest of these men's privacy, no source will be given.
10. Facebook: Facts & Figures for 2010, DIGITALBUZZ BLOG (Mar. 22, 2010), http://www.digitalbuzzblog.com/facebook-statistics-facts-figures-for-2010/. Currently, approximately 100 million North Americans are members of Facebook.
11. Id.
12. See generally Danielle Keats Citron, Law's Expressive Value in Combating Cyber Gender Harassment, 108 MICH. L. REV. 373 (2009).
13. Much of the rest of the world can too. World Internet Usage & Population Statistics, INTERNET WORLD STATS, http://www.internetworldstete.com/ stats.htm (last updated June 30, 2010).
14. See generally John Suler, The Online Disinhibition Effect, 7 CYBERPSYCHOL. & BEHAV. 321, available at http://www-usr.rider.edu/-suler/ psycyber/disinhibit.html (explaining why offline social controls fail online).
15. See, e.g., John Perry Barlow, A Declaration of the Independence of Cyberspace, ELECTRONIC FRONTIER FOUNDATION (Feb. 8, 1996), http://homes.eff.org/ -barlow/ Declaration-Final.html;
16. see also Alfred C. Yen, Western Frontier or Feudal Society?: Metaphors and Perceptions of Cyberspace, 17 BERKELEY TECH. L.J. 1207, 1216-31 (2002) (discussing and critiquing the analogy between the Internet and the Wild West).
17. Summarizing the double-edged nature of the Internet, one commentator has said, "New technologies generate economic progress by reducing the costs of socially productive activities. Unfortunately, those same technologies often reduce the costs of socially destructive activities." Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 62 (2009).
18. See DANIEL J. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP?, RUMOR, AND PRIVACY ON THE INTERNET 17-49 (2007) (discussing how quickly information spreads on the Internet).
19. See id.
20. See infra notes 34-39.
21. Schwartz, supra note 1, at 26. Fortuny, after getting death threats because of the Craigslist ad, purged his real address and phone number from the Internet.
22. Id.
23. Other trolls completely wipe out their offline identities. Id. Internet Protocol ("IP") addresses can be used to identify users' locations, but they can be "spoofed" to hide the location of a user or to impersonate a different network. See Major Arie J. Schaap, Cyber Warfare Operations: Development and Use Under International Law, 64 A.F. L. REV. 121, 137 (2009). Alternatively some websites may actively avoid tracking or collecting IP addresses; indeed, this obfuscation may be part of their allure.
24. See Citron, supra note 14, at 118 ("Generally, the operators of destructive websites either have information that could identify abusive posters or have made a conscious decision not to obtain or retain that information. Some website operators function as crowd leaders, influencing the mobs' destructiveness.").
25. If it is possible to trace someone, such a trace is only temporary; ISPs routinely flush their data. Id.
26. See Nancy S. Kim, Web Site Proprietorship and Online Harassment, 2009 UTAH L. REV. 993, 1008-09 (2009).
27. See Kim, supra note 19, at 1008-9;
28. see also Citron, supra note 14, at 119.
29. See Citron, supra note 14, at 122-25.
30. The Communications Act of 1996, Pub. L. 104-104, 110 Stat. 137.
31. See infra Part 1V.A (describing some of the academic literature that has taken issue with the CDA).
32. In its legislative findings, Congress recognized the growing prominence of the Internet. 47 U.S.C. § 230(a)(1) (2006) ("The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens."). Congress additionally acknowledged that the Internet provided an excellent forum for discussion and cultural development. § 230(a)(3). But Congress noted that legislation in this area need tread carefully, the Internet had flourished with a "minimum of government regulation." § 230(a)(4).
33. See Stratton Oakmont, Inc. v. Prodigy Servs. Co., Index No. 031063/94, 1995 WL 323710 (N.Y Sup. Ct. May 24, 1995),
34. superseded by statute, Communications Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 56,
35. as recognized in Zeran v. America Online, Inc., 129 F.3d 327 (4th CLr. 1997).
36. In Stratton Oakmont, plaintiff, a securities investment firm, sued Prodigy, an early Internet service provider, over allegedly libelous statements Prodigy users had made on a Prodigy-provided, financially themed message board. Id. at *1. The case hinged on whether Prodigy could be considered the "publisher" of this third-party content. Id.; cf. 47 U.S.C. § 230(c)(1).
37. Stratton Oakmont, 1995 WL 323710. The case turned on Prodigy's actions and statements regarding the content of its message boards.
38. Id. at *3 ("[T]he critical issue to be determined by this Court is whether the ... evidence establishes a prima facie case that PRODIGY exercised sufficient editorial control over its computer bulletin boards to render it a publisher with the same responsibilities as a newspaper.").
39. Prodigy had previously portrayed itself as a service that "exercised editorial control over the content of messages posted on its computer bulletin boards" and likened itself to a newspaper. Id. at *2.
40. The court held that these express statements indicated that Prodigy exercised sufficient editorial control over the content of its message board to render it as liable as a normal newspaper would be. Id. at *5.
41. The deciding factors were that Prodigy (i) held itself out to control the content of its message boards and (ii) that it implemented control over the same boards with screening software. Id.
42. Prodigy was making decisions over content, which amounted to editorial control and thus justified finding liability. Id. at *4-5.
43. Id. at *3.
44. Robert Cannon, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 FED. COMM. L.J. 51, 57 (1996) (explaining that the main purpose of the act was to criminalize the communication of pornographic material to minors).
45. Id. at 59-62.
46. The first defense was a "mere access" defense. Id. at 59-60.
47. An Internet service provider ("ISP") would not be liable as long as the provider did not create the content provided; there would be no liability without control. Id. at 60.
48. The second defense was the "good faith defense," prompted by the decision in Stratton Oakmont. Id. at 61-62.
49. This defense was intended to eliminate the "''Hobson's choice' between creating 'child safe' areas that expose the ISP to liability as an editor ... or publisher, and doing nothing in order to protect the ISP from liability." Id. at 62
50. See Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997).
51. Cannon, supra note 28, at 59-62.
52. Congress also articulated the policy behind these defenses: the desire to promote the continued development of the Internet, to encourage the development of technology that encourages user control over content received by users, and to incentivize the development of filtering and blocking technologies to help users choose which content they receive. 47 U.S.C. §230(bXD, (3), (4) (2006).
53. § 230(c)(1).
54. §230(c)(2)(A). These two subsections are respectively, the "mere access" and "good faith" defenses. See supra note 29.
55. 129 F.3d 327 (4th Cir. 1997).
56. Zeran concerned posts on one of AOL's message boards, which claimed that Zeran was selling paraphernalia that made light of the thenrecent Oklahoma City bombing. Id. at 329.
57. The poster gave Zeran's phone number; he received threatening phone calls -sometimes as many as one every two minutes -but could not disconnect his phone because he relied on it for work. Id.
58. Id. at 330.
59. The court first noted that any lawsuit seeking to hold a service provider liable for exercising a "publisher's traditional editorial functions -such as deciding whether to publish, withdraw, postpone, or alter content" would be barred. Id. at 330.
60. Zeran attempted to argue around this statutorily imposed stance by suggesting that AOL be considered a "distributor," who could be liable for defamatory statements of which it had "specific knowledge." Id. at 331.
61. The court rejected this argument: first, it held that, for the purposes of defamation, AOL was ultimately a publisher, even if it was also a distributor. Id. at 332-33
62. ("[B]ecause the publication of a statement is a necessary element in a defamation action, only one who publishes can be subject to this form of tort liability." Id. at 332.).
63. If AOL was a publisher, then, under the plain language of the CDA, it could not be held liable for third-party content. Id. at 330 ("Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role.").
64. Finally, the court cited two Congressional policy considerations regarding ISP immunity: the threat tort suits would pose to the growth of free speech on the Internet and Congress's desire -in light of the decision in Stratton Oakmont -to encourage good-faith self-regulation. Id. at 330-31.
65. Id. at 333.
66. Zeran was attempting to flesh out his claim that AOL should be liable as a distributor for allegedly defamatory comments of which it had specific knowledge, i.e., comments whose defamatory nature he had given notice of. Id. at 331-32.
67. The court rejected this argument because, first, AOL could not be a distributor only for purposes of a defamation action, and, second, predicating Internet publisher liability on notice would frustrate First Amendment interests and discourage the good-faith self-regulation that the CDA favors. Id. at 332-33.
68. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003).
69. The case featured a dating website on which an unknown third party had posted a fake profile, pictures, and telephone number of a well-known actress. Id. at 1121.
70. The court held that although some of the allegedly defamatory material was created in response to a questionnaire created by the website, this prompting did not make the website an "information content provider," as the website did not actively create or develop the content. Id. at 1124-25.
71. The court additionally emphasized the policy behind CDA immunity: "to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material." Id. at 1122.
72. See also Green v. America Online, 318 F.3d 465 (3d Cir. 2003).
73. The court there held that the plaintiffs tort claim - that AOL was negligent in not removing harmful content from its network -treated the defendant as a publisher as it attempted to hold "AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network." Id. at 471.
74. See Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703 (Ct. App. 2002).
75. In this case, eBay was sued for its role in the sale of sports merchandise marked with forged autographs. Id. at 707-08.
76. The court held that eBay was only a disseminator of representations made by third parties that the merchandise was authentic. Id. at 714-15.
77. Thus, eBay was being sued as a publisher and through Section 230 defenses was not liable. Id.
78. See also Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980, 986 (10th Cir. 2000) (holding AOL not liable for false stock information available on its network because that information was developed by a third party and because attempting to hold AOL liable would treat it as a "publisher" of the information);
79. Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir.), cert, denied, 129 S. Ct. 600 (2008) (holding MySpace not liable for its failure to create basic safety measures to protect minors).
80. In MySpace, the plaintiff circumvented the website's age restrictions by lying about her age, which allowed her profile to be viewed by other users -one of whom ended up sexually assaulting her. Id. at 416.
81. The court stated that it was obvious that the plaintiff was attempting to hold MySpace liable for the content it displayed but that was actually created by the plaintiff: her profile. Id. at 419-20.
82. See supra notes 34-39.
83. Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc).
84. Id.
85. Id. at 1162.
86. Id. (quoting 47 U.S.C. § 230(f)(3) (2006)).
87. Id. (quoting §230(f)(3)).
88. Id. at 1162-63.
89. Id. at 1163-65.
90. Id. at 1161.
91. Id.
92. Id.
93. Id. at 1166.
94. Id. at 1165 ("[T]he fact that users are information content providers does not preclude Roommate from also being an information content provider by helping 'develop' at least 'in part' the information in the profiles.... [T]he party responsible for putting information online may be subject to liability, even if the information originated with a user.").
95. Roommates.com used drop-down menus that limited users to certain answers and thus induced users' discriminatory preferences. Id. Roommates.com was also stripped of CDA immunity for its search engine, which allowed users to perform searches based on discriminatory criteria identified in user profiles. Id. at 1167.
96. This liability, however, would not extend to similar searches on neutral search engines, such as Google, as they are not designed to make use of unlawful criteria; finding liability in these instances would stretch the term "develop" too far because all search engines "develop" search results. Id. at 1167-68.
97. Id. at 1166-68.
98. Id. at 1167-68.
99. Id. at 1169.
100. Id.
101. The court believed this definition of development would be too broad; additionally, the court worked to distinguish the instant facts from a previous case, Carafano v. Metrosplash. com, Inc., 339 F.3d 1119 (9th Cir. 2003).
102. The Roommates.com court differentiated this earlier case, which concerned a defamatory profile posted on a dating website, by noting that, in Metrosplash. com, the allegedly libelous website was created with "neutral tools" and thus Metrosplas. com did not encourage the allegedly defamatory profile. Roommates.com, 521 F.3d at 1171.
103. To become a developer, a service provider needs to make the illegal content easier to create, enhance its sting, or encourage illegality. Id. at 1172.
104. This assertion is consistent with the earlier Craigslist decision. See Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668 (7th Cir. 2008).
105. See Roommates.com, 521 F.3d at 1169 & n.23.
106. Id.
107. Id. at 1169.
108. Id.
109. Id. at 1173.
110. Id. at 1174.
111. Id.
112. see also Chi. Lawyers' Comm., 519 F.3d at 666.
113. This case was very similar to Roommates.com, the main difference being that Craigslist never prompted the user with questions whereas Roomates.com used open-ended essay questions. Id. at 668.
114. Roommates. com, 521 F.3d. at 1172 n.33.
115. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101-02 (9th Cir. 2009) ("[W]hat matters is whether the cause of action inherently requires the court to treat the defendant as the 'publisher or speaker" of content provided by another.").
116. See Batzel v. Smith, 333 F.3d 1018, 1037 (9th Cir. 2003) (Gould, J., concurring in part, dissenting in part) ("Congress believed this special treatment would 'promote the continued development of the Internet and other interactive computer services'... 'largely unfettered by Federal or State regulation.'"
117. (quoting 47 U.S.C. § 230(b)(1)-(2) (1996))).
118. See generally William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 MICH. L. REV. 874 (1939).
119. Id. at 876.
120. Id. at 875;
121. see also DAN B. DOBBS, THE LAW OF TORTS § 302 (2000).
122. Prosser, supra note 68, at 877 (arguing that the law should not allow recovery for every hurt feeling).
123. See id.
124. See Daniel Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 COLUM. L. REV. 42, 43-44 (1982) (describing the history of the tort).
125. RESTATEMENT (SECOND) OF TORTS § 46 (1965).
126. Givelber, supra note 73 at 44-45.
127. See Prosser, supra note 68, at 877-78.
128. Id. at 878 ("[I]n such intentional misconduct [that gives rise to liability] there is an element of outrage, which in itself is an important guarantee that the mental disturbance which follows is serious, and that it is not feigned.");
129. see also FOWLER V. HARPER ET AL., HARPER, JAMES AND GRAY ON TORTS § 9.1 (3d ed. 2006).
130. See Prosser, supra note 68, at 879.
131. The emphasis here is on outrageous conduct: while the threshold for liability is quite high, the tortfeasor does not need to subjectively intend to cause harm for his conduct to be outrageous. Id.;
132. see also Givelber, supra note 73, at 46 ("[I]ntending to inflict serious emotional distress on another does not establish liability in the absence of outrageous conduct, [and] similarly, when the defendant behaves outrageously, the plaintiff will not usually be required to show either intention to cause distress or even a deliberate disregard of a high degree of probability that it will result.")
133. Outrageous conduct is an objective standard. See Prosser, supra note 68, at 879;
134. see also Givelber, supra note 73, at 46-47.
135. Prosser, supra note 68, at 887.
136. Id.
137. Professor Rabin has emphasized that this tort has a special policy concern for "crushing liability." Robert L. Rabin, Emotional Distress in Tort Law: Themes of Constraint, 44 WAKE FOREST L. REV. 1197, 1200-02 (2009).
138. Jacqueline Becerra et al., Common Law Intentional Infliction of Emotional Distress, Assault, and Battery, PRAC. LITIGATOR, March 2009, at 29, 30 (noting that courts are first to decide whether a course of conduct could reasonably be interpreted as outrageous).
139. See HARPER ET AL., supra note 77, § § 9.1, 9.2 (describing several contexts and actions likely to give rise to a cause of action under the tort).
140. Prosser, supra note 68, at 882-83;
141. see also HARPER ET AL., supra note 77, §9.1 ("Common carriers, telegraph companies, and other public utilities became especially vulnerable for emotional distress intentionally caused by their employees.").
142. The acts of any defendant, who was in a special position to harm or harass the plaintiff, especially when such harm was likely to be particularly oppressive, are more carefully scrutinized by courts. Id.
143. Prosser, supra note 68, at 883.
144. Givelber, supra note 73, at 62-63.
145. See DOBBS, supra note 70, §304.
146. Id.
147. Givelber, supra note 73, at 46.
148. See id. at 62-63.
149. HARPER ET AL., supra note 77, § 9.1.
150. The Restatement defines "outrageous conduct" as conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." RESTATEMENT (SECOND) OF TORTS §46 cmt. d (1965).
151. See Rabin, supra note 80, at 1205-06
152. (quoting Robert C. Post, Tort Law and the Communitarian Foundations of Privacy, RESPONSIVE COMMUNITY, Winter 1999/2000, at 19, 26).
153. See id.;
154. see also Givelber, supra note 73, at 52-53.
155. See Rabin, supra note 80, at 1205 (asserting that LIED polices "the boundary between tolerable and unacceptable behavior").
156. The common law has an interest in punishing only egregious breaches of social norms; otherwise, courts would be inundated with trivial lawsuits. Id. at 1206.
157. See generally Givelber, supra note 73.
158. Givelber argues that HED is unique in that it is intended to punish outrageous behavior, rather than compensate the individual harmed. Id. at 54.
159. The tort is used as a tool for social regulation and helps signal social norms. See Rabin, supra note 80, at 1205-07.
160. Givelber, supra note 73, at 43.
161. Some examples of these relationships are creditordebtor, insurer-insured, employer-employee. Id. For more examples of such relationships, see Becerra et al., supra note 81, at 30-31. The existence of this pattern of relationships reinforces the idea that the tort is used to help signal social norms.
162. Catherine E. Smith, Intentional Infliction of Emotional Distress: An Old Arrow Targets the New Head of the Hate Hydra, 80 DENV. U. L. REV. 1, 33 (2002) ("[IIED] is still developing and is sufficiently flexible to address new situations that evolve from Internet activity.... [T] he central component of the tort, determining whether the defendant's conduct is extreme and outrageous, requires a contextual analysis.").
163. See infra Part III.D.
164. See Givelber, supra note 73, at 62-75.
165. This Note focuses on speech, as it is most relevant to this Note's discussion.
166. HARPER ET AL., supra note 77, §9.2.
167. Id.
168. See Merle H. Weiner, Domestic Violence and the Per Se Standard of Outrage, 54 MD. L. REV. 183, 200, 209-11 (1995) (chronicling the various relationship structures that are more likely to yield outrage).
169. Id. at 209-11. The difference between the public and private sphere is the expectation of peace and tranquility in one's home and with one's family -the private sphere - and the lack of this expectation in locations within the public sphere -such as at the workplace.
170. Id. Sometimes certain levels of abuse may even be expected or even valued at work.
171. Id. at 210 (quoting Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Intentional Infliction of Emotional Distress, 41 STAN. L. REV. 1, 1 (1988)).
172. Id. at 209.
173. Id.
174. HARPER ET AL., supra note 77, § 9.2.
175. Id. § 9.3. Common carriers are more akin to the private sphere than the public sphere and thus create different expectations of tolerable conduct. See Weiner, supra note 103, at 209-10.
176. HARPER ET AL., supra note 77, § 9.3.
177. Id.
178. Rabin, supra note 80, at 1208.
179. Id.
180. See Id. Rabin argues that there is a longitudinal element to both the damages requLred and whether there is liability in the first place.
181. See Id. at 1208-09.
182. Id.
183. Givelber, supra note 73, at 74 (noting the unassuming way in which the tort developed).
184. Although some have noticed that IIED is a sometimes-disfavored cause of action. See generally Russell Fraker, Note, Reformulating Outrage: A Critical Analysis of the Problematic Tort of IIED, 61VAND. L. REV. 983 (2008).
185. The issue of cyber-bullying has garnered its own research center. See CYBERBULLYING RESEARCH CENTER, http://www.cyberbullying.us/ (last visited Sept. 27, 2010).
186. See Rabin, supra note 80, at 1205.
187. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009).
188. See Mary Anne Franks, Unwilling Avatars: Idealism and Discrimination in Cyberspace, 19 COLUM. J. GENDER & L. (forthcoming 2011) (manuscript at 8-10), available at http://papers.ssrn.OTm/sol3/papers.cfm7abstract-id=1374533.
189. See generally Id. Professor Franks notes that cyberspace idealists resist regulation of the Internet -especially of speech -because any regulation can only deprive users of liberty; this argument assumes that the natural state of the Internet maximizes liberty.
190. Id. at 11-13. Franks then argues that only some enjoy the unrestrained freedom of the Internet and that others, mostly women, experience "a loss of liberty and a reentrenchment of physical restraints already unequally imposed upon them in the offline world."
191. Id. at 19. Thus cyberspace has never equally offered liberty to all, and legal regulation is desirable.
192. Id. at 21.
193. See supra Part ILA Many Internet users have been victims of, or have witnessed acts of, online harm or cyber harassment. See Ann Bartow, Internet Defamation as Profit Center: The Monetization of Online Harassment, 32 HARV. J.L. & GENDER 383, 392 (2009).
194. Smith, supra note 97, at 6-7.
195. John W. Wade, Tort Liability for Abusive and Insulting Language, 4 VAND. L. REV. 63, 63 (1950).
196. Creator liability limits liability to the person that created the content.
197. See Citron, supra note 14, at 69 (chronicling the different forms of online harm that the author and others have identified).
198. Id. at 70. The invasion and publication of personal information is described as a longer-termed harm.
199. Id. ("Victims feel a sustained loss of personal security and regularly dismantle their online presence to avoid further devastation of their privacy.").
200. Id. at 71. This harm is akin to "digital 'scarlet letters' that destroy reputations."
201. Id.
202. Id. at 70.
203. For more examples, see Richard Morgan, Revenge Porn, DETAILS, http://www.details.com/sex-relationships/porn-and-perversions/200809/ revenge-porn (last visited Nov. 2, 2010);
204. Patti Weaver, OSU Student Faces Blackmail Charge, TULSA WORLD, Sept. 28, 2007, at A8.
205. First, victims may be dissuaded from going online. See Citron, supra note 11, at 385. Second, victims may begin to change their behavior offline for fear that online harm will manifest itself offline.
206. Id. Third, victims can be emotionally distressed for long periods of time. See David Margolick, Slimed Online, PORTFOLIO (Feb. 11, 2009), http://portfolio.com/news-markets/national-news/portfolio/2009/02/11/ Two-Lawyers-Fight-Cyber-Bullying. Finally, any of the previously discussed harms may begin to affect victims' professional reputations and their future ability to find work. See
207. Ellen Nakashima, Law Students Feel Lasting Effects of Capricious Remarks, WASH. POST, Mar. 7, 2007, at A1.
208. Citron, supra note 11, at 381-82.
209. See Margolick, supra note 131.
210. Id.
211. Id.
212. Id.
213. See Prosser, supra note 68, at 887.
214. See supra Part II.B.2 (explaining the nature of outrage).
215. See Wade, supra note 124, at 66-67;
216. see also Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133 (1982) (discussing the development of liability for racial insults). There have even been calls to create a specific tort for abusive words.
217. See generally Id. These proposals have been met with resistance, however, on First Amendment grounds. See generally Marjorie Heins, Banning Words: A Comment on "Words that Wound," 18 HARV. C.R.-C.L. L. REV. 585 (1983) (exploring potential First Amendment problems with the cause of action that Professor Delgado proposes);
218. see also Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV. 1049 (2000). A specific tort for words is unnecessary; the expansion and wider acceptance of IIED can provide the liability needed.
219. Wade, supra note 124, at 66-71. This logic has also extended to hotels, theaters, innkeepers, and elevators in general officer buildings.
220. Id. at 69.
221. Id. at 66-67.
222. See HARPER ET AL., supra note 77, §§9.2. 9.3 (discussing why words accompanying a trespass are more likely to be actionable and citing the right to be free of insults from those unwelcome in one's home).
223. Id. §9.3.
224. See supra notes 104-106 and accompanying text (explaining that outrage usually hinges on where the conduct was performed and that outrage is more easily found when wrongful conduct invades the private sphere).
225. See Suler, supra note 12.
226. See Id.
227. Smith, supra note 97, at 21.
228. See Suler, supra note 12.
229. See generally Id.
230. Professor John Suler gives several reasons for these behavioral changes. Id.
231. Internet users may experience dissociate anonymity, in which they no longer feel they are themselves; invisibility; "asynchronicity" or not having to witness a counter party's immediate reaction to something; solipsistic interjection, or feeling that the social interaction is taking place solely in one's mind; dissociate imagination, a divergence between what is real and what is online; and minimizing authority, or feeling that, online, everyone is on a level playing field.
232. Id.
233. Id.
234. Id.
235. See supra note 149.
236. Id.
237. Citron, supra note 14, at 81-84. Professor Danielle Keats Citron argues that the Web, especially Web 2.0 platforms "create a feeling of closeness among like-minded individuals," which makes these individuals exceptionally aggressive and bold in their actions.
238. Id. at 83.
239. See Suler, supra note 12.
240. See SOLOVE, supra note 15, at 32-38 (describing the role that access to new, anonymous social circles plays in allowing online harm to spread).
241. See Franks, supra note 120, at 8-10 (describing the Internet's attractive potential to shed the body).
242. Smith, supra note 97, at 25.
243. Id.
244. Id. With the near-ubiquitous prevalence of Completely Automated Public Turing Test to Tell Computers and Humans Apart ("CAPTCHA") technology on websites, it is fair to say that false information is a continuous and, for now, intractable problem for Internet service providers. John C. Abell, Google Does Captcha One Better, WIRED (Apr. 17, 2009), http://www.wired.com/epicenter/ 2009/04/google-goes-cap/. Identity anonymity is advantageous in that it allows people to speak more freely. Smith, supra note 97, at 25. Such anonymity, however, can also encourage increasingly outrageous conduct undeterred by the threat of identification or exposure.
245. Id. at 26.
246. See supra note 18 and accompanying text (explaining how individuals, with extensive effort, may be able to hide who they are online).
247. Smith, supra note 97, at 26-27.
248. Id. at 27. Again, this anonymity has both positive and negative repercussions.
249. Id.
250. Id. at 25-27. Anonymity may have other perverse results, too. Anonymity can make deception easier. Citron, supra note 14, at 124. It may allow people to say things they deeply regret later on. See Margolick, supra note 131 (reporting that the AutoAdmit posters eventually admitted remorse). Professor Daniel J. Solove has noted that anonymous posts make it more difficult to "know what information to trust and what not to trust." SOLOVE, supra note 15, at 145.
251. Smith, supra note 97, at 42. The author argues that anonymity may leave a victim particularly terrified of and helpless to oppose content posted about them.
252. Id. at 44.
253. Id. Some have argued that anonymity may also reduce the likelihood that users can resolve conflicts over posted content through nonlegal means. Kim, supra note 19, at 1010 ("If the victim of a post is unable to identify the poster, he or she is unable to resolve any conflicts or clarify an issues in a nonlegal manner.").
254. See supra note 160.
255. See SOLOVE, supra note 15, at 144, 147 (explaining that traceable anonymity already exists on the Internet).
256. Id.
257. See Franks, supra note 120, at 8-10.
258. See SOLOVE, supra note 15, at 61. Professor Solove describes linking as one of the fastest ways that information grows on the Internet.
259. See Id. at 50-54.
260. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 712 (9th Cir.), amended by 508 F.3d 1146 (9th Cir. 2007).
261. Id.
262. Id.
263. Id.
264. See SOLOVE, supra note 15, at 42 ("[I]n today's world, foolish deeds are preserved for eternity on the Internet.").
265. See Part II.A.
266. See Franks, supra note 120, at 27.
267. Smith, supra note 97, at 21-24 ("Unlike any other medium, the Internet permits anyone with ideas, information, or a message to reach vast numbers of people." Id. at 21.). Professor Smith notes that, in the past, the costs of distributing content increased with the size of the audience desired;
268. the Internet largely eliminates this Limitation. Id. at 21-22.
269. Id. Though the ability to reach a large group of people may be advantageous, this ability can also be used to make harassment and humiliation of others easier.
270. Id. at 22.
271. See Id.;
272. see also Part II.B.2 (noting that common carriers were often held liable for the emotional distress that passengers inflicted upon one another and for the distress their employees inflicted upon the passengers).
273. Entities capable of controlling content include message board administrators and website proprietors.
274. See SOLOVE, supra note 15, at 66. The more people know about others, the argument goes, the more accurately they can gauge one another, and the more frictionless interactions will become.
275. Id. The counter-argument is that learning out-of-context facts about another person can lead to inaccurate judgments.
276. Id. at 67. Out-of-context facts can also lead to judgments based on social stigma and other potentially irrational reasons.
277. Id. at 70-71. Professor Solove proceeds to discuss the shaming phenomenon that can accompany online content and the potential value of such shaming.
278. See Id. at 77-81. He argues that shaming helps enforce social norms, which are much more useful than law in keeping people in check.
279. Id. at 83-87. Online shaming, however, can be disproportionate to the harm, or performed for vengeance.
280. Id. at 94-99.
281. Richard A. Epstein, The Legal Regulation of Genetic Discrimination: Old Responses to New Technology, 74 B.U. L. REV. 1, 12 (1994).
282. See SOLOVE, supra note 15, at 101.
283. See Id. at 33. In addition, attacks on reputations that introduce irrelevant -e.g. medical history -or untrue considerations have little value.
284. See supra Part ILB (discussing the tort of IIED).
285. See Kim, supra note 19, at 1010-12. This Note does not discuss the argument surrounding whether non-Internet derived law should be applied to the Internet. For a discussion on that argument, see generally Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207 (1996).
286. Bruce L. Mann, Social Networking Websites -A Concatenation of Impersonation, Denigration, Sexual Aggressive Solicitation, Cyber-Bullying or Happy Slapping Videos, 17 INT'L J.L. & INFO. TECH. 252, 253 (2009). Social networks' reliance upon voluntary submission of user-submitted content may mean that anonymity is less of a problem on sites like Facebook, which require registration, but access anonymity will still exist, and fake profiles can still be created.
287. See, e.g., Man Libelled Ex-Pal on Facebook, SKYNEWS (July 24, 2008), http://news.sky.com/skynews/Home/Technology/Facebook-Libel-Case-Won-InHigh- Court-By-Mathew-Firsht-Against-His-Former-Friend-Grant-Raphael/Article/ 200807415052473.
288. SOLOVE, supra note 15, at 4;
289. see also Citron, supra note 11, at 386.
290. See SOLOVE, supra note 15, at 76-83. This loss of control is a result of the inability to classify other social network users as anything other than friends or not friends; the author argues that human relationships are more complex than such a simple binary opposition.
291. Id. at 26-27.
292. Id. at 100.
293. People do not fear what is written about them in a dark corner of the Internet; they fear what appears when someone Googles their names or looks up their Facebook profiles. See Steven J. Horowitz, Defusing a Google Bomb, 117 YALE L.J. 37 (Supp. 2007).
294. See supra notes 103-106 and accompanying text.
295. See supro notes 164-165 and accompanying text.
296. See Brittan Heller, Responding to Internet Harassment, Of Legal Rights and Moral Wrongs: A Case Study of Internet Defamation, 19 YALE J.L. & FEMINISM 279, 280 (2007) (arguing that what is written online may be laughable and unrealistic and yet still powerfully harmful).
297. See supra Part ILA;
298. see also Margaret Jane Radin, Compensation and Commensurability, 43 DUKEL.J. 56, 67-69 (1993).
299. See supra Part III.B.3 (describing how content spreads uncontrollably on the Internet). Google and other search engines can be manipulated. See generally James Grimmelmann, The Google Dilemma, 53 N.Y.L. SCH. L. REV. 939 (2009). Large scale versions of this phenomenon are called "Google-bombs."
300. Id.
301. A "Google-bomb" is a way of manipulating Google's search algorithm to push certain websites to the top of the search results list.
302. Id. at 941-43. These bombs can be quite pernicious.
303. Id. at 943. Google is generally unwilling to "defuse" a Google bomb.
304. See Citron, supra note 14, at 74 n.82 (stating the Google is usually unwilling to "fix" search results that have been altered, except in a few well known cases).
305. See supra Part II.B.2 (analyzing the importance of context in evaluating outrage).
306. See Id.;
307. see also Weiner, supra note 103, at 207-13 (contrasting the difficulty of finding outrage in the workplace with the ease of finding outrage in the home).
308. See Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d. 666, 668 (7th Cir. 2008) (likening some online services to classifieds in newspapers and some to common carriers).
309. See Brian Leiter, Autoadmit Updates: "Two Subpoenas Away," BRIAN LEITER'S LAW SCHOOL REPORTS (Nov. 6, 2008, 3:20 PM), http:// leiterlawschool.typepad.com/leiter/ 2008/11/autoadmit-updat.html. Another example is 4chan.org. See Schwartz, supra note 1, at 24-26.
310. Margolick, supra note 131.
311. Id.
312. Id.
313. Id.
314. See supra note 120 and accompanying text.
315. See Givelber, supra note 73, at 57.
316. See Franks, supra note 120;
317. see also Complaint, Doe v. Ciolli, 611 F. Supp. 2d 216 (D. Conn. 2009) (No. 3:07-CV-909 (CFD)) (listing the actual harm the two plaintiffs suffered). Both plaintiffs sought counseling, did worse in school, and incurred substantial costs.
318. Id. at paras. 39, 61. In addition, they experienced difficulty finding jobs.
319. Id.
320. See supra Part III.B.3 (describing how quickly and easily content spreads on the Internet).
321. Realizing there can be different contexts on the Internet may help the law perform its teaching function. See Weiner, supra note 103, at 195 ("Tort law generally, and the tort of intentional infliction of emotional distress in particular, frames what interests we value as a society and prescribes how human beings should treat each other.").
322. See supra Part II.B.2.
323. See Weiner, supra note 103, at 209-10.
324. See supra Part II.B.2 (noting that words said on a common carrier can be actionable as outrageous specifically because they were said in the context of being on a common carrier).
325. See SOLOVE, supra note 15, at 35-40 (discussing several examples of content that was harmless when private but debilitating to the victim when spread).
326. See Emily Bazelon, Have You Been Cyberbullied?, SLATE (Jan. 16, 2010), http://www.slate.com/id/2242666/ (noting that nearly a third of teens report being cyberbullied and that cyberbullying has been linked to some suicides).
327. See Shira Auerbach, Note, Screening out Cyberbullies: Remedies for Victims on the Internet Playground, 30 CARDOZO L. REV. 1641 (2009)
328. KrisAnn Norby-Jahner, Comment, "Minor" Online Sexual Harassment and the CDA §230 Defense: New Directions for Internet Service Provider Liability, 32 HAMLINE L. REV. 207 (2009). For a discussion of how cyberbullying might be regulated by schools -and First Amendment problems with such government action
329. -see Stacy M. Chaffin, Comment, The New Playground Bullies of Cyberspace: Online Peer Sexual Harassment, 51 How. L.J. 773 (2008)
330. Kevin Turbert, Note, Faceless Bullies: Legislative and Judicial Responses to Cyberbullying, 33 SETON HALL LEGIS. J. 651 (2009). For a brief discussion of how social networks respond to threats, sexual solicitation, and other illegal activities within the networks,
331. see Sander J.C. van der Heide, Note, Social Networking and Sexual Predators: The Case for SelfRegulation, 31 HASTINGS COMM. & ENT. L.J. 173 (2008).
332. See generally Mary Anne Franks, Sexual Harassment 2.0 (Mar. 28, 2010) (unpublished manuscript) (on file with author).
333. Franks, supra note 218, at 12.
334. See Citron, supra note 11, at 378-90. The article notes that most often women are harassed and that the harassment is generally exclusively sexual in nature. Id. at 378-84. Some of the most infamous cases are those affecting women: Kathy Sierra, the online blogger who was pushed offline by threats, id. at 380-81;
335. Jill Filipovic, the NYU Law student harassed on AutoAdmit, id. at 381-82;
336. and Alyssa Royse, another blogger who was terrorized, id. at 382-83. For more examples, see id. at 383-84.
337. See generally Kim, supra note 19. Professor Nancy Kim's proposal is quite complex. She argues that anonymity should be made more difficult for posters of content -to help reduce the costs of litigation -and suggests policies that will slowly make nonanonymity the default rule online. Id. at 1019-23.
338. Professor Kim also argues that websites should be enticed to police themselves through various carrot-like measures and that proprietorship liability should be imposed upon website sponsors. Id. at 1026-47.
339. She would have all websites that might be used as businesses -in effect all websites -be held to the same standards as those usually applied to possessors of land. Id. at 1038. Such liability, she argues, would encourage websites to prevent and deter future online harm. Id. at 1042-43.
340. See Bartow, supra note 122, at 421, 423-28.
341. ReputationDefender is an online service used by some victims of online harm. Id. at 391-92. Professor Ann Bartow argues that such services exploit and stand to profit from online misery. Id. at 419.
342. They may also attempt to destroy legitimate information. Id. at 425.
343. Finally, she argues that such firms' business models rely on continual Internet harm, which incentivizes them to "perpetuate the conditions" that initially made their services useful. Id. at 429.
344. Id. at 399; see also Citron, supra note 11, at 399-400.
345. Citron, supra note 14, at 103-06 (arguing that interpersonal solutions are ludicrously ineffective, especially for the lay individual).
346. Id. at 104.
347. See Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1106-09 (9th Cir. 2009).
348. Id. The court briefly limns the issue and makes no definite pronouncement. There has been no academic writing on this possibility.
349. See generally KLm, supra note 19.
350. See Suler, supra note 12 (discussing the characteristics of the Internet that make its users crueler to one another). Moreover, disposing of anonymity could greatly chill free expression.
351. See generally Volokh, supra note 139.
352. See Kim, supra note 19, at 1016-17.
353. See supra Part III.B.2.
354. See supra Part III.D.
355. See supra notes 102-106.
356. Kim, supra note 19, at 1045;
357. see also Margolick, supra note 131 (detailing what made AutoAdmit so attractive to its users).
358. See supra Parts II.B.2, III.A.2 (describing the need for a social steam vent).
359. Heller, supra note 196, at 280.
360. Id. She also claimed that the AutoAdmit board is "laced with sexist, racist, homophobic, and threatening content." Id. at 281.
361. See Citron, supra note 11, at 411 (discussing the teaching function of the law in the context of her proposal for cyber civil rights). Professor Citron argues that the law can (1) help the public to understand the problem of online sexual harassment and the scope of damage that it inflicts upon women; (2) validate the harm in the eyes of those who suffered it; (3) change the way law enforcement and courts respond to online harm; and (4) legitimize and solidify current private efforts to eliminate online harm. Id. at 410-12.
362. Others who have written on this issue wish to hold content creators liable as they are the best cost-avoiders. See generally Kim, supra note 19.
363. See SOLOVE, supra note 15, at 37 (arguing that taking control of content is essential to continued freedom on the Internet).
364. As noted, the problem is often compounded by mob behavior. See Citron, supra note 14. In addition it is difficult to tell what content will become popular and what content will not. The AutoAdmit case was not, at first, a concentrated effort to harass the victims. See Margolick, supra note 131. The harm was real, but no one person caused it.
365. See supra Part H.A.
366. Id.
367. See SOLOVE, supra note 15, at 35-38 (detailing how some content can be very harmful if widely distributed though harmless if seen by only a few).
368. See supra Parts II.B, III.C.
369. See supra Part III.D (arguing that the Internet is made up of different types of contexts).
370. See also Delgado, supra note 139 (describing the teaching power of the law). The notion is that places that generate outrageous content are also places that solicit such content and thus often should not be supposed to be striving for truth.
371. See Givelber, supra note 73, at 74-75 ("[A] court can believe that any given decision represents a response to particularly egregious facts and not a general statement respecting legal rights.").
372. Id. at 75 ("The doctrine has typically been invoked, and is likely to continue to be invoked, on behalf of the noninstitutional, nonprofessional party to a variety of significant economic and commercial relations."). Professor Givelber's theory is that the tort should right wrongs that are otherwise intractable. This approach is applicable to online harm.
373. See supra notes 96 and 103-104.
374. See supra note 146 and accompanying text (arguing that online harm is less costly to the creator and more costly to the victim). In a way, the power imbalance between attacker, distributor, and victim is similar to the kind of power dynamics that the tort has traditionally been concerned with policing.
375. See supra Parts III.B.1-2 (describing the anonymous nature of most online harm). Such harm is often mob inflicted and creates natural power imbalances between victim and aggressor.
376. See Kim, supra note 19, at 1006-07, 1055-56.
377. For a discussion of the tort of privacy, see generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4. HARV. L. REV. 193 (1890).
378. Newsworthiness is a common law defense and has proved crippling to this tort, which has thus "floundered." Rabin, supra note 80, at 1204.
379. See Kim, supra note 19, at 1007.
380. Defamation is also problematic because the truth of a statement is a defense, and therefore assertions that are true, though outrageous, would not be actionable. See Kim, supra note 19, at 1007.
381. See supra notes 34-39 (principal alternative tort employed in CDA cases has been defamation).
382. See generally Robert L. Rabin, Enabling Torts, 49 DEPAUL L. REV. 435 (1999)
383. Id. at 437-38.
384. See generally Rabin, supra note 80.
385. See supra notes 83-84 and 107-110. Enabler liability is not a new idea. Rabin, supra note 255, at 438.
386. Rabin discusses several examples of enabler liability in the context of negligent entrustment. A hallmark case was one in which a great-aunt was held liable for the grand-nephew's harm because she provided him with the money to buy a car and "paved the way for a truly reckless individual to be imposing serious risks of injury on the public at large." Id. at 439.
387. The author views this case under the lens of "risk facilitation" and likens it to several older cases: Hines v. Garrett, 108 S.E. 690 (Va. 1921), and Cruz v. Middlekauf Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996). The former case involved a railroad conductor who forced a woman to deboard the train at a point after her stop; he was held liable for her subsequent rapes because he exposed her to the risk of walking in an unsafe area. Rabin, supra note 255, at 439.
388. The latter case involved a car
389. dealership that left the key to a car in its ignition; the car was later stolen and used to harm others. Id. at 440-41.
390. Id. at 451;
391. see also Alex Kozinski & Josh Goldfoot, A Declaration of the Dependence of Cyberspace, 32 COLUM. J.L. & ARTS 365 (2009) (discussing some aspects of enabler liability with regard to online harm).
392. Enabler liability often focuses on situations in which a third party, usually one with deeper pockets, affirmatively enhanced the risk of the conduct. Rabin, supra note 255, at 449-50.
393. Another example, somewhat more relevant to this discussion, is Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477 (D.C. CLr. 1970). Rabin argues that the main thrust of the opinion is to "emphasize a deterrence rationale for creating a duty to protect against third-party violence."
394. Rabin, supra note 255, at 444. Rabin notes that "[n]ot only is the renter in a better position than the tenant to adopt precautionary measures, but the renter is better situated than the police to diminish the risk of criminal assault on the premises." Id. A similar case concerning an attack in a parking lot of a shopping center found the shopping center liable even though there had been no prior similar incidents on the premises. Id. at 445-46.
395. See Rabin, supra note 255, at 444-46.
396. Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1169-68 (9th Cir. 2008) (internal quotation marks omitted).
397. Id. at 1168-69 (noting that an overly narrow definition of "develop" would not take into account the "swift and disorderly changes that are the hallmark of growth on the Internet").
398. Id. (internal quotation marks omitted).
399. Id. at 1169 ("A website operator who edits user-created content -such as by correcting spelling, removing obscenity or trimming for length -retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality. However, a website operator who edits in a manner that contributes to the alleged illegality -such as by removing the word 'not' from a user's message reading '[Name] did not steal the artwork' in order to transform an innocent message into a libelous one -is directly involved in the alleged illegality and thus not immune." (modification in original)).
400. See id. at 1162.
401. Id. at 1164 n.13.
402. Id. at 1170 n.26.
403. See supra Parts III.B.3, III.C (explaining that the true cause of online harm is the spread of injurious information).
404. Roommates.com, 521 F.3d at 1167.
405. Id. at 1169.
406. Id. The court also explained that Roommates.com was being held liable for "the predictable consequences of creating a website designed to solicit and enforce housing preferences that are alleged to be illegal." Id. at 1170.
407. Id. at 1171 ("[E]ven if the data are supplied by third parties, a website operator may still contribute to the content's illegality and thus be liable as a developer.").
408. Id.
409. Id. at 1169.
410. See supra Parts III.A, D.
411. Roommates.com, 521 F.3d at 1168 (internal quotation marks omitted).
412. See supra notes 202-207 and accompanying text, (explaining the nature of sites like AutoAdmit.com).
413. See Margolick, supra note 131.
414. Such an approach parallels the Roommates.com court's own litany of factors that would help it determine whether the ISP had developed content. Roommates.com, 521 F.3d at 1172.
415. Similarly, in Roommates.com, the court argued that Roommates.com "elicits the allegedly illegal content and makes aggressive use of it in conducting its business." Id. at 1172;
416. see also Skyler McDonald, Note, Defamation in the Internet Age: Why Roommates.com Isn't Enough to Change the Rules for Anonymous Gossip Websites, 62 FLA. L. REV. 259 (2010) (arguing that Roommates.com can be extended to sites that solicit gossip).
417. Roommates.com, 521 F.3d at 1174.
418. See Givelber, supra note 73, at 46.
419. Monitoring is much easier to do with popular content than with all posts.