<b><i>Commentary:</i></b> Social Networking Safety Act: A Mistaken Effort

As passed by the Assembly, the “Social Networking Safety Act,” A-3757, would prohibit any person from transmitting a “sexually offensive” communication on a social networking site to anyone the sender “knows or should know” is under 16, or a “harassing” communication to anyone whom the sender knows or should know is under 18. It defines sexually offensive to include both the constitutionally obscene and solicitations to engage in sexual activity. It defines harassing communications as those “that serve no legitimate purpose” and that a reasonable person would believe are “intended to threaten, intimidate or harass.” It would make the sender of such communications civilly liable both to the recipient and to the operator of the social networking site. (See, www.njleg.state.nj.us/2008/Bills/A4000/3757_R1.HTM.)

But the primary targets of A-3757 are the operators of social networking sites. Section 4 of the bill imposes on them a choice. Either they can police what is posted for sexually offensive and harassing communications, and block the access of anyone who posts them, or they are subject to the sanctions of the Consumer Fraud Act (N.J.S.A. 56:8-1 to 20; www.state.nj.us/lps/ca/laws/ConsumerFrau dAct.pdf), including treble damages and attorneys' fees. But having first purported to impose this liability on the operator, the bill as amended on the Assembly floor then declares that “nothing in the bill shall be construed to permit a civil action against an interactive computer service that is inconsistent with the provisions of 47 U.S.C. '230,” better known as the Communications Decency Act (http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=47&sec=230).

That floor amendment reduces the bill from a serious burden on free speech on the Internet to a political gesture. Section 230 declares that one of the purposes of the Communications Decency Act is “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” To that end, it provides that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any content provided by another information content provider.” Section 230 immunizes the operator of a blog, a bulletin board, a social networking site or any other interactive Web site from liability both for content posted by users and for failure to remove user-posted content in response to complaints. It pre-empts any state statute making a social networking site operator liable for its failure to monitor user comments, remove offending comments and restrict access to the site, including New Jersey's effort to apply the Consumer Fraud Act for that purpose.

What then remains? To the extent that the broad definitions of “sexually offensive” and “harassing” pass muster under the First Amendment, A-3757 will allow parents of minors to sue individuals who proposition or insult their minor children online for nominal damages, actual damages for emotional distress and attorneys' fees. The criminal law already addresses both harassment and the solicitation of unlawful sex acts. The common law already provides liability, to a limited extent, for intentional infliction of emotional distress where the conduct is outrageous and the impact severe, for invasion of privacy and for defamation. Expanding these liabilities to create a new and favored tort out of the general run of teenage nastiness simply because it is communicated through a social networking Web site may be a bonanza for lawyers, but it is a waste of an overburdened judicial system's resources.

Adolescence is a maelstrom of ill-regulated emotions, high school often a theater of cruelty, where heartbreak ' or what seems at the time to be heartbreak ' is an all too common occurrence. The Internet has simply brought into the open and put before parental eyes the taunts and malicious gossip that have always been written on bathroom walls and spoken in high school hallways out of adult earshot. It is the task of parents and pedagogues to teach their young charges decency and civility. We understand the parental feelings that have gotten A-3757 through the Assembly, albeit much limited from the original version, but we hope that the Senate will allow it to fade quietly away.

[Editor's Note: The use of social networking by children is one of the most fascinating aspect of social media's emergence. And even more so for older children as they near adulthood and the topics of their discussions turn decidedly adult-oriented. What's your take on the issue? Should social networking sites be liable for sexually explicit material on their pages? Or do you agree with our colleagues at the NJLJ? Join
the Internet Law & Strategy group on LinkedIn to discuss: www.linkedin.com/groups?gid=2232489&trk=hb_side_g.]

[Editor's Note: Our Incisive Media affiliate, New Jersey Law Journal, published the following commentary on the New Jersey legislature's attempt to react to the "sexting" issue by making Web site operators liable for what users write. Since the federal Communications Decency Act specifically excuses site operators from such liability, the NJLJ editors, after examining the proposed NJ legislation, wonder what possible purpose such legislation might serve. The commentary demonstrates the "rock and a hard place" situation that states face as they try to protect children from the malicious and/or sexually explicit aspects of the social networking phenomenon. For another example, see, "Internet Child Porn Search Is 'Knowing Possession' in PA" in the July issue of Internet Law & Strategy, available online at www.ljnonline.com/issues/ljn_internetlaw/7_7/news/152390-1.html.]

First the federal government tried (unsuccessfully, it turned out) to keep children safe from pornography on the Internet. Now New Jersey is stepping up to the plate to keep children safe from online gossip. The kids clearly aren't safe from pornography (see, “Sexting and the Single Girl,” NJLJ, March 30; www.law.com/jsp/article.jsp?id=1202429477445), but Trenton is convinced that it can and should make sure they can't read scurrilous comments about themselves or their friends on social networking Web sites such as Facebook or MySpace.

The Legislature is trying to do this by expanding the law of defamation and by making Web site operators liable for what users write there. The first effort is merely ill-advised; the second is pre-empted by federal law and hence unconstitutional.

As passed by the Assembly, the “Social Networking Safety Act,” A-3757, would prohibit any person from transmitting a “sexually offensive” communication on a social networking site to anyone the sender “knows or should know” is under 16, or a “harassing” communication to anyone whom the sender knows or should know is under 18. It defines sexually offensive to include both the constitutionally obscene and solicitations to engage in sexual activity. It defines harassing communications as those “that serve no legitimate purpose” and that a reasonable person would believe are “intended to threaten, intimidate or harass.” It would make the sender of such communications civilly liable both to the recipient and to the operator of the social networking site. (See, www.njleg.state.nj.us/2008/Bills/A4000/3757_R1.HTM.)

But the primary targets of A-3757 are the operators of social networking sites. Section 4 of the bill imposes on them a choice. Either they can police what is posted for sexually offensive and harassing communications, and block the access of anyone who posts them, or they are subject to the sanctions of the Consumer Fraud Act (N.J.S.A. 56:8-1 to 20; www.state.nj.us/lps/ca/laws/ConsumerFrau dAct.pdf), including treble damages and attorneys' fees. But having first purported to impose this liability on the operator, the bill as amended on the Assembly floor then declares that “nothing in the bill shall be construed to permit a civil action against an interactive computer service that is inconsistent with the provisions of 47 U.S.C. '230,” better known as the Communications Decency Act (http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=47&sec=230).

That floor amendment reduces the bill from a serious burden on free speech on the Internet to a political gesture. Section 230 declares that one of the purposes of the Communications Decency Act is “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” To that end, it provides that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any content provided by another information content provider.” Section 230 immunizes the operator of a blog, a bulletin board, a social networking site or any other interactive Web site from liability both for content posted by users and for failure to remove user-posted content in response to complaints. It pre-empts any state statute making a social networking site operator liable for its failure to monitor user comments, remove offending comments and restrict access to the site, including New Jersey's effort to apply the Consumer Fraud Act for that purpose.

What then remains? To the extent that the broad definitions of “sexually offensive” and “harassing” pass muster under the First Amendment, A-3757 will allow parents of minors to sue individuals who proposition or insult their minor children online for nominal damages, actual damages for emotional distress and attorneys' fees. The criminal law already addresses both harassment and the solicitation of unlawful sex acts. The common law already provides liability, to a limited extent, for intentional infliction of emotional distress where the conduct is outrageous and the impact severe, for invasion of privacy and for defamation. Expanding these liabilities to create a new and favored tort out of the general run of teenage nastiness simply because it is communicated through a social networking Web site may be a bonanza for lawyers, but it is a waste of an overburdened judicial system's resources.

Adolescence is a maelstrom of ill-regulated emotions, high school often a theater of cruelty, where heartbreak ' or what seems at the time to be heartbreak ' is an all too common occurrence. The Internet has simply brought into the open and put before parental eyes the taunts and malicious gossip that have always been written on bathroom walls and spoken in high school hallways out of adult earshot. It is the task of parents and pedagogues to teach their young charges decency and civility. We understand the parental feelings that have gotten A-3757 through the Assembly, albeit much limited from the original version, but we hope that the Senate will allow it to fade quietly away.

[Editor's Note: The use of social networking by children is one of the most fascinating aspect of social media's emergence. And even more so for older children as they near adulthood and the topics of their discussions turn decidedly adult-oriented. What's your take on the issue? Should social networking sites be liable for sexually explicit material on their pages? Or do you agree with our colleagues at the NJLJ? Join
the Internet Law & Strategy group on LinkedIn to discuss: www.linkedin.com/groups?gid=2232489&trk=hb_side_g.]