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Abstract

Though the rapid development of the Internet has created a fertile ground for legal innovation, more often than not legislators and courts have sought to address this relatively new medium by attempting to squeeze it into precedents and paradigms better suited to older forms of communication, technology, and media. Part I of this article looks back at the courts' initial efforts at addressing defamation via the Internet. From the start the courts attempted to fit the role of the ISP into the common law's categorizing of print media as either "publishers" or "distributors" of information. One court's misstep in overextending the liability of one ISP to that of a publisher led Congress to sweep ISP liability into the CDA in an attempt to give ISPs more tools to regulate content they consider offensive. Part I then takes a look at the most recent major Internet defamation case, Blumenthal v. Drudge, and how it cemented the current regime, which interprets Congress's prohibition of ISP liability for "publishers" as a prohibition against virtually all liability and not a narrowing of ISP liability to that of a "distributor." The potential ramifications for allowing ISPs to be liable as "distributors" of third party defamatory content are addressed in Part III. In particular, the section focuses on whether a notice-based liability regime could function on the Internet without either compromising the medium's main advantages or chilling free speech. Part IV takes into account these same concerns while arguing for a narrow application of "publisher" liability to those few ISPs that fulfill a content-providing role akin to that of a publisher of a newspaper or magazine. By examining the Drudge case directly, this comment demonstrates how traditional safeguards in defamation law like the "actual malice" standard for public figures will severely limit the chances of these ISPs to fall victim to unwarranted liability, and that a federal exemption from "publisher" liability for ISPs was never really necessary. Defamation law is one field where Congress could effectively legislate a federal standard based on prior precedents with minor tweaking without taking the sledgehammer tactic of providing blanket immunity to those who provide access to the defamers of tomorrow. A federal standard is necessary due to the unique jurisdictional concerns of the Internet that are examined in Part V. Congress should reform the CDA to create a more even playing field between Internet media providers and broadcast and print media providers so that the former (just as much as the latter) may be found liable as "distributors" when they fall to remove defamatory content of which they are aware. In addition, if an ISP commissions and edits information content in a manner analogous to newspaper or book publishers, it should be held to the stricter "publisher" standard of fault as well.

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