Guilty pleasures. We all have them, right? For some, it may be an implacable appetite for reality television. For others, it could be a secret celebration of the newest hit song from a painfully uncool pop singer. Whatever it may be, a guilty pleasure sparks a battle between emotion and conscience. The “I Love You, I Hate You” section of Philadelphia City Paper (“City Paper”) is capable of triggering such inner strife. In this section of the alternative weekly newspaper, individuals anonymously submit messages addressed to equally anonymous recipients. As its title indicates, the section highlights opposite poles of the emotional spectrum. Although some messages are of the heartwarming “I Love You” variety, the vast majority constitute a public airing of dirty laundry ranging from amusing to alarming to downright horrifying. Voyeurism is a part of human nature, but the scandalous content of some of the City Paper’s “I Love You, I Hate You” messages could make some individuals reticent to admit that they read the section.
Submission of an “I Love You, I Hate You” message is simple for anyone with internet access. Upon navigating to the appropriate page of the City Paper’s website, an individual must fill in four required fields and agree to the paper’s Terms of Agreement. When the message is published in print or online, only the text and subject line of the message are printed. Thus, unless these portions of the message contain an identification of the addressor or addressee, anonymity is preserved.
Could the City Paper be held liable in a defamation action if a particularly vehement message published online contains the addressee’s full name? The short answer is no. Federal law provides a special form of immunity to online publishers. Section 230(c) of the Communications Decency Act of 1996 (“CDA”) immunizes website operators from claims arising out of content created by third parties. Specifically, the statute 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.” Thus, because the reader is “another information content provider” by virtue of composing the text of his or her “I Love You, I Hate You” message, the City Paper, an interactive computer service, may seek protection from liability arising out of that message under the CDA’s immunity provision.
More sophisticated internet interactivity, however, has blurred the line between interactive computer service and information content provider, and as a result, there is controversy over the reach of the CDA’s immunity provision. For example, suppose that the City Paper, seeking to increase its online presence, offered standardized “I Love You, I Hate You” messages for its less creative—or perhaps busier—readers. The process begins by asking the reader to select responses to a few questions from drop-down menus. These questions would determine who the addressee is in relation to the reader (friend, sibling, significant other, etc.) and how the reader feels about this person (love, hate, etc.). Based upon these responses, the City Paper’s website produces an “I Love You, I Hate You” form letter with a number of blank spaces in which the reader is urged to choose the perfect noun, adjective, or adverb for the situation from a drop-down menu. The instructions on this page tell the reader to “hold nothing back” and “really let this person know how you feel.” After making his or her selections, the reader can view the finished product and choose to publish it on the City Paper’s website to share with other readers. Does the City Paper’s role in the production of this message disqualify it from claiming § 230(c) immunity? The City Paper provided the reader with a template, word choices to complete his or her message, and the network infrastructure to publish the message online. The reader, on the other hand, initiated the process, selected the appropriate words from drop-down menus, and decided whether or not to publish the message online.
This Comment contends that, in light of increasingly interactive internet technologies, the traditional editorial functions and essential published content standards provide the appropriate methods for resolving questions of responsibility for the partial creation or development of disputed content in § 230(c) immunity determinations. This Comment further contends that reservations over the broad immunity provided by § 230(c) are addressed more appropriately by limiting the scope of the statute rather than unduly expanding the definition of information content provider. Part II.A presents an overview of the foundation of the CDA’s immunity provision. Part II.B examines the language of § 230(c) and the requirements of the statute’s immunity provision. Part II.C defines the boundaries of § 230(c) immunity. Part II.C.1 examines § 230(c)’s provision of immunity for the exercise of traditional editorial functions, while Part II.C.2 discusses recognition of § 230(c) immunity where no action is taken with respect to disputed or offensive content. Part II.C.3 explores the point at which § 230(c) immunity becomes unavailable as a result of partial creation or development of disputed content. Part II.C.3.a defines what the majority of courts agree does not constitute partial creation or development of content and includes a discussion of the essential published content standard announced in Carafano v. Metrosplash.com, Inc. Part II.C.3.b examines the notion of partial responsibility for disputed content arising from acts of inducement or contribution and discusses the material contribution standard of Fair Housing Council of San Fernando Valley v. Roommates.com, LLC.
Part III.A categorizes and evaluates the judicial methods currently employed in determining content creator identity: the traditional editorial functions, essential published content, and material contribution standards. Part III.A.3 examines the material contribution standard in-depth and argues that it threatens to render § 230(c) immunity virtually meaningless, contradicts the plain language of the statute, erroneously injects the issue of liability into content creator identity determinations, creates undue uncertainty for website operators, and directly contradicts the express policy rationales underlying the CDA. Finally, Part III.B contends that the traditional editorial functions and essential published content standards are best suited to the determination of content creator identity, and Part III.C argues that concerns over the breadth of the CDA’s immunity provision are addressed best by altering its scope rather than the definition of content creation.