“Your mother was intimate with a camel! And the camel killed itself in shame!“
I’ve published this statement solely for educational purposes to start a discussion on whether you can use the DMCA for defamation claims. No mothers were hurt or entertained in the making of this article. No camels either. I did get a hand cramp, but I toughed it out. But I digress.
Defamation. A nasty little subject.
Defamation consists of a statement designed to injure the reputation of another person/mother/camel or potentially a large corporation who runs off with your private information. Defamation is known as “slander” if the person making the offending statement does so orally, and “libel” if it is written or typed.
Merely thinking about insulting another party with random witty and insulting remarks is not defamation. You must speak or publish the comment. It is much like wishing various torments on family members at Thanksgiving when you see that gun-toting conservative fascist uncle/Prius-driving liberal socialist hippie aunt once a year. While you may be tempted to fill their pie hole with a lethal-sized turkey leg, it isn’t murdering unless you act on the desire according to the Thanksgiving Purge Act of 1947. [Probably want to check that out before committing.]
Also, you are allowed to yell anything you want at people paying at the cashier with pennies without the threat of liability if there is a long line. No jury is going to convict in that scenario. Jurors stand in lines too.
So, can you use the DMCA for defamation claims? Let’s explore.
DMCA for Defamation
DMCA and Section 230
Is there any good news on this front? Yes. While the DMCA isn’t much help with defamatory statements, those honest and wholesome folks in our nation’s capital passed a separate law that provides you with some solace.
The Communications Decency Act of 1998 is the law. Congress’ goal was to combat online porn, as the name suggests. You can probably imagine how that went given the tiny amount of pornography available on the Internet these days. Yep, the Supreme Court invalidated much of the law because of this pesky thing called free speech, but one part survived – Section 230.
Section 230(c)(1) states,
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Umm…what? To prove defamation, you must show:
- A person made a false statement of fact concerning a second party;
- The person published the statement to one or more other parties;
- The person did so knowingly or negligently.
Since 230(c)(1) states that no provider of an interactive computer service [website or app] shall be treated as a publisher or speaker…it is impossible to prove the second element of defamation, which means the site or app owner cannot be held liable for defamation based on statements made by users.
And what compliance steps must you take to obtain this protection? None. The protection applies automatically.