Internet Intermediary Liability in Defamation

Abstract

Given the broad meaning of publication in defamation law, internet intermediaries such as internet service providers, search engines, and social media companies may be liable for defamatory content posted by third parties. This article argues that current law is not suitable to dealing with issues of internet defamation and intermediary responsibility because it is needlessly complex, confusing, and may impose liability without blameworthiness. Instead, the article proposes that publication be redefined to require a deliberate act of communicating specific words. This would better reflect blameworthiness and few intermediaries would be liable in defamation under this test. That said, intermediaries profit from content, and they have the capacity and flexibility to respond to defamation in a way that courts cannot. The paper therefore also proposes a regulatory framework called notice-and-notice-plus. This would require intermediaries to forward a notice of complaint to content creators, and only to remove content in limited circumstances.