Proposed Legislation: Currently pending in the New Jersey legislature is bill A1827, which proposes a requirement that all Internet computer services and Internet service providers remove defamatory materials and disclose account information to defamed individuals. Specifically, if passed, this law would require a website to adhere to two new requirements. First it would be required to remove defamatory materials once it has received notice from a user that the materials are “defamatory and offensive.” Second, it would require a website to disclose “relevant account information” when the website has posted defamatory content about the requesting individual.
The proposed law would greatly enhance the remedies available to a person or business who has been defamed on line. Currently most websites take the position that (a) they are immune from liability relating to other posters’ defamation; (b) they are not obligated to take down such information; and (c) if you want to obtain such information about the actual speaker of the defamatory material, you need to obtain a subpoena. This position is bolstered by some of the cases that have come down on this issue, including ones that have specifically denied a user the right to obtain information about an anonymous poster. Whereas previously a website or forum host could try to avail itself of immunity under the Communications Decency Act, this law, if passed would provide direct responsibilities and liability for the website for failure to comply with the statute’s requirements. Moreover, it could enable a victim to obtain information about the wrongdoer without having to obtain an order to show cause, or otherwise commence suit to simply obtain the identity of the responsible.
On the other hand, if passed, this law could cause undue harm to website owners in that they would now have the burden of policing their sites. Although the law only requires that materials be removed once the website has been put on notice, websites are now tasked with the responsibility of determining whether the complained-of content is “defamatory and offensive.” This determination is often to be made by a trier-of-fact, and is therefore perhaps inappropriate for website owners to determine. If this law passed, our recommendation to such websites would surely be to err on the conservative side, and take down any and all content that it receives a complaint about. However, an argument could certainly be made that such efforts, and requirements under the law, could impair free speech.