Section 230 Protects Retweeting–Banaian v. Bascom

May 12, 2022 · by · in Content Regulation, Derivative Liability, Internet History

[I’m forestalling more analysis of the Texas social media censorship law until we get some clarity on what happened and what’s next.]

A student hacked the school website and added scandalous content about a teacher, Debbie Banaian, a/k/a “Banaianator.” [Aside: who still does this? I’ve been blogging similar stories since I started blogging, and the practice of spoofing teachers online was already stale then]. Another student screenshotted the hacked website and tweeted the screenshot. The defendants in this case retweeted the screenshot. Banaian sued the retweeters (and others) for defamation and emotional distress. The retweeters successfully defended on Section 230 grounds.

Banaian argued that the retweeters were not “users” of interactive computer services. A similar argument failed over 15 years ago in Barrett v. Rosenthal. To get around this, Banaian argued that the term “user” was ambiguous. The court disagrees. Instead, the court says: “That individual users are immunized from claims of defamation for retweeting content that they did not create is evident from the statutory language.”

I recently blogged a ruling that quote-tweeting didn’t qualify for Section 230 protection, but that’s because the quote-tweeter added new material to the retweet, and the new material was the basis of the claim. In 2016, I blogged a case where a screenshotted tweet was forwarded by email. The court there said 230 did not apply, but I think that court was wrong; plus maybe email forwarding and using Twitter’s native retweet function have legally significant differences, though I wouldn’t distinguish them.

This ruling is a fabulous reminder that Section 230 doesn’t just protect “Big Tech”; it protects all Americans who use the Internet. Perhaps the defendants would have ultimately defeated this case anyways, but having Section 230 on their sides gave them–and all of us–a little more freedom to engage each other on social media without fearing that every casual interaction might trigger a financial cataclysm. So the next time you hear politicians claiming that Section 230 benefits only Google and Facebook, cite this case as additional proof that they misunderstand what Section 230 actually does, or they are lying, or both.

Case citation: Banaian v. Bascom, 2022 WL 1482521 (N.H. Supreme Ct. May 11, 2022)

BONUS: Holmok v. Virag, 2021 Ohio Misc. LEXIS 5768 (Ohio Muni. Ct. Sept. 9, 2021). Section 230 applied to retweeting.

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