Must-Read Empirical Study of 47 USC 230 Jurisprudence by David Ardia

By Eric Goldman

David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loyola of Los Angeles Law Review 373 (2010)

Let me start with the punchline: if you are interested in 47 USC 230 jurisprudence (and let’s face it, who isn’t???), then you need to read this article. In fact, clear your calendar for this afternoon. Although I am not completely sold on its conclusions, any cogent discussion about 47 USC 230 jurisprudential trendlines must acknowledge this article.

David Ardia directs the Citizen Media Law Project, a frequent outlink on this blog. He undertook the heroic (and some might say ill-advised) task of finding and coding 47 USC 230 cases–a total of 184 decisions–and then generating some statistical conclusions from the dataset. This is not a project I would have undertaken because empirical research is such a quagmire, but we as a community of 47 USC 230 scholars and practitioners get the benefit of David’s efforts.

(I should note that David sent me a draft of this article last Fall, which sat unread in my inbox for 3 months. I then sent David an extremely lengthy and detailed set of comments about a week before his final edits were due to the law review. Some of my critiques are not news to David, but he may not have had a chance to fully address them based on my delayed feedback.)

(I further note that I have not doublechecked David’s dataset or coding. For this post, I assume he did it “correctly.”)

If you have limited time (the PDF is 134 pages), start on page 41 of the PDF, which is where the empirical discussions heat up. There is a lot to discuss and explore, but I will highlight two significant statistical conclusions.

First, the paper calculates that 230 defendants win the defense “only” about 2/3 of the time, leading him to conclude that the statute “has not been the free pass many of its proponents claim and its critics lament.” This is an interesting conclusion, but it leaves me wondering how this compares with the hypothetical calculation of cases where the 230 defense should have failed vs. the situations where it should have succeeded. Still, I am one of the people who thinks 230 is a free pass for defendants, so the successful batting average was lower than I expected.

Second, the paper makes the following assertion on page 108:

“many of the intermediaries that invoked section 230 likely would not have faced eventual liability under the common law because they lacked knowledge of and editorial control over the third-party content at issue in the cases. Given this prediction, one might question whether section 230 is necessary.”

Whoa! This is an important and implicitly troubling statement. The paper is positing an alternative scenario where 230 doesn’t exist and arguing that we might not notice a difference. Of course, we know that other countries are having very different experiences with UGC due to the 230′s absence. At the same time, US common law still differs from other countries’ laws, so perhaps the US common law’s trajectory would have reached a similar place. Having said that, for reasons the paper does explore, we are better off for having the statutory immunity than relying on common law developments. Furthermore, 230’s real brilliance is that it immunizes service providers *because they exercise* editorial control, which leads to better outcomes.

I’ll briefly mention two other stats that puzzled me.

On page 59, the paper says: “in more than half of the section 230 decisions (58.8%), the speech at issue was not published anonymously.” Later, on page 115, the paper advances the inverse stat: “41.2% of the decisions studied involved anonymous content.” In theory, this means 40% of cases involve primary tortfeasors who can’t be found, but I’m skeptical about this because successful online anonymity is really hard. After all, the AutoAdmit authors thought they were anonymous until they were de-anonymized. For more, see Paul Ohm’s paper on reidentification.

On page 117, the paper says “in more than half of the cases (55%), the content plaintiffs sued over was no longer available as of mid-2009,” which suggests plaintiffs can get content takedowns despite 230 because the service provider voluntarily helps or the author takes the content down him/herself (or, in some cases, the court ordered the takedown). This brought to mind the Ripoff Report’s refusal to remove content at the author’s request, a relatively unique posture for UGC hosts. See Blockowicz v. Williams.

The paper gives me another reason to remind you that SCU will be hosting a 47 USC 230 celebration on March 4, 2011, where I hope we will discuss cutting-edge research on 230 like this paper. More details to come, but mark your calendar now. If you are working on 230-related research that you think might be appropriate to present at this conference, please contact me.

UPDATE: David’s CMLP blog post on his article.

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The abstract:

In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law’s distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.

This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute’s enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.

The Article closes by discussing the study’s findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary’s defense under section 230.