The Sixth Circuit considered whether the Communications Decency Act of 1996 (“CDA”) bars state-law defamation claims. Jones v. Dirty World Entm’t. Recordings, LLC, et al., Case No. 13-5946 (6th Cir. June 16, 2014). The Court answered in the affirmative, and adopted the “material contribution” test to evaluate the scope of immunity conferred by section 230 of the CDA.
The CDA (a/k/a Title V of the Telecommunications Act of 1996) affects online communications in two ways. First, it is Congress’s first real attempt to regulate pornographic and indecent material on the Internet. Second, and relevant to the Dirty World decision, section 230(c)(1) of the CDA provides that, “[n]o 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.” In other words, section 230 protects website operators from liability for the words of the third parties who use their online services. As explained by the Sixth Circuit in Dirty World, “Section 230 . . . immunizes providers of interactive computer services against liability arising from content created by third parties.” In addition to the protection afforded to Internet service providers, section 230 of the CDA diverges from the common-law rule that allocates liability to publishers or distributors of tortious material prepared by others. Specifically, section 230(e)(3) provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
“We are masters of the unsaid words, but slaves of those we let slip out.” – Winston Churchill
On January 1, 2015, California Senate Bill 568, titled “Privacy Rights for California Minors in the Digital World,” (the “Privacy Law”) took effect. Among other provisions, the new Privacy Law includes the “Eraser Law,” which gives California minors a right to delete content that they posted to a website, social media profile, or online service while under the age of 18. S.B. 568. In other words, the new law protects minors who post content online from later dealing with the consequences of what they post. Its proponents are hailing the first-in-the-country law as a good step toward giving under-18 Internet users a chance to remove regrettable postings and preserve their reputation. The problem, however, is that the new law is focused on remedying the wrong issue. Internet users already have the ability to remove their own embarrassing content, and the new Privacy Law does not change that. The real issue is harmful content posted online about others (i.e., defamatory texts, embarrassing pictures, etc.).
The walls seem to be closing in on Ohio’s Public Records Act in southwest Ohio. The Twelfth District Court of Appeals refused to order disclosure of hundreds of pages of documents regarding missing property from the Goshen Township Police Department that were turned over to the Ohio Bureau of Criminal Identification and Investigation (“BCI”). The Community Journal, North Clermont v. Reed, 2014-Ohio-5745 (Dec. 30, 2014). This is the court’s second recent blow to the Act. See Miller v. Ohio State Highway Patrol, 2014-Ohio-2244 (finding, on remand from the Ohio Supreme Court, that police cruiser cam videos of sobriety tests are not public records).
In August 2013, the Clermont County Sherriff’s Office and the Goshen Township Chief of Police sought BCI’s help in investigating potential fraud by local law enforcement. BCI received documents from the police that it “assembled, compiled and maintained” for its investigation. A reporter for The Community Journal, North Clermont contacted BCI and requested permission to inspect the documents sent by the police department. BCI denied the request citing Ohio Rev. Code ¶149.43(A)(1)(h), the confidential law enforcement investigatory records exception. Specifically, BCI argued that the records were part of an ongoing investigation and release of the record would create a high probability of disclosure of specific investigatory work product.
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