The Two Hats Defense
Here’s a recent decision from the U.S. District Court for the Northern district of Illinois that demonstrates that a newspaper operating an interactive Web site wears two hats for purposes of the Communications Decency Act. The case involved a plaintiff who was the subject of a nasty, anonymous posting on the Web site operated by the Journal-Standard, a newspaper in Stephenson County, Illinois. The plaintiff argued that the newspaper should be liable for the posting. The court, however, correctly ruled that the CDA, which says that the operator of an interactive computer service cannot be deemed the publisher of content submitted by a third party. The offensive comment here was posted by someone named “Fuboy.” And the newspaper could not be considered the publisher, and so could not be liable for defamation. The fact that the newspaper occasionally posted its own content on the site didn’t change the analysis. When it posted its own content, the paper was a content creator and could be liable for that content. When it merely hosted third party comments, it was not a content creator. Different hats lead to different standards. Even metaphorical ones.