Why leave the safe harbor provision intact for site operators, search engines, and other online service providers do not attempt to block offensive, indecent, or illegal activity but by no means encourage or are principally used to host illicit material as cyber cesspools do? If we retain that immunity, some harassment and stalking — including revenge porn — will remain online because site operators hosting it cannot be legally required to take them down. Why countenance that possibility?
Because of the risk of collateral censorship—blocking or filtering speech to avoid potential liability even if the speech is legally protected. In what is often called the heckler’s veto, people may abuse their ability to complain, using the threat of liability to ensure that site operators block or remove posts for no good reason. They might complain because they disagree with the political views expressed or dislike the posters’ disparaging tone. Providers would be especially inclined to remove content in the face of frivolous complaints in instances where they have little interest in keeping up the complained about content. Take, as an illustration, the popular newsgathering sites Digg. If faced with legal liability, it might automatically take down posts even though they involve protected speech. The news gathering site lacks a vested interest in keeping up any particular post given its overall goal of crowd sourcing vast quantities of news that people like. Given the scale of their operation, they may lack the resources to hire enough people to cull through complaints to weed out frivolous ones.
Sites like Digg differ from revenge porn sites and other cyber cesspools whose operators have an incentive to refrain from removing complained-about content such as revenge porn and the like. Cyber cesspools obtain economic benefits by hosting harassing material that may make it worth the risk to continue to do so. Collateral censorship is far less likely—because it is in their economic interest to keep up destructive material. As Slate reporter and cyber bullying expert Emily Bazelon has remarked, concerns about the heckler’s veto get more deference than it should in the context of revenge porn sites and other cyber cesspools. (Read Bazelon’s important new book Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy). It does not justify immunizing cyber cesspool operators from liability.
Let’s be clear about what this would mean. Dispensing with cyber cesspools’ immunity would not mean that they would be strictly liable for user-generated content. A legal theory would need to sanction remedies against them. Read More