Centre for Communication Governance at NLU delhi
Liability of Intermediaries

Scott Sterling, International Law of Mystery: Holding Internet Service Providers liable for Defamation and the need for a comprehensive International solution, 21 Loyola of Los Angeles Entertainment Law Review 327 (2000-01)

This Comment discusses the weaknesses of the current country-by country approach by which ISPs are held legally responsible for publishing libel. It analyses current Internet libel law at the international level and argues the necessity for a revision regarding its treatment.

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Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The case for Intermediary Liability for Defamation, 14(2) Harvard Journal of Law and Technology 569 (2001)

In this article, the author seeks to determine which institution – Congress, courts or the market – must determine the scope of intermediary liability. He does so by exploring various methodologies such as the public choice theory, transaction cost economics and legal processes. The author urges courts to take a greater look at comparative institutional analysis to determine the role of law in cyberspace.

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H. Brian Holland, In defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, 56(101) Kansas Law Review (2007)

This article defends the broad immunity granted to ISPs under Section 230 of the Communications Decency Act. It argues that the immunity provisions of Section 230 play a significant role in broader questions of Internet governance. Specifically, Section 230 immunity provides a means of working within the sovereign legal system to effectuate many of the goals, ideals and realities of the Internet exceptionalism, cyberlibertarian movements.  It concludes that efforts to reform Section 230 are unnecessary and unwise.

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Matthew G. Jeweler, The Communications Decency Act of 1996: Why § 230 is Outdated and Publisher Liability for Defamation Should be Reinstated Against Internet Service Providers, 8 University of Pittsburgh Journal of Technology Law & Policy 3 (2007)

Section 230 of the CDA has been interpreted broadly, giving seemingly complete immunity to internet service providers (“ISPs”) and website operators in third-party claims for defamation committed on the Internet. This article argues that today, with the Internet being the dominant medium that it is, the CDA is out-dated and unfair, and should be amended or repealed in favour of the common law framework for publisher liability in defamation.

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Seth Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries and the problem of the weakest link, 155(11) University of Pennsylvania Law Review (2006)

The architecture of the internet makes it difficult to ascribe liability on speakers or listeners directly and hence liability is fixed on private intermediaries who are clink in the armour. The author argues that this move poses a threat to the freedom of speech as intermediaries will have less incentive to protect free speech than individual speakers and market forces do not have the power to balancing rights.

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Melissa A. Troiano, The New Journalism: Why Traditional Defamation Laws should apply to Internet Blogs, 55 American University Law Review 1447 (2005-06)

This article argues that the immunity under Section 230 of the Communications Decency Act should not extend to bloggers with respect to third party postings made on their blogs. It argues that private parties should only have to prove the defamation standard of negligence, whether they are on the Internet or in the traditional media. It concludes that the First Amendment goal of promoting the free exchange of ideas is helped, not hindered, by allowing private persons to keep the protection given them in Gertz when they venture into cyberspace.

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