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Using Communication Decency Act and Promissory Estoppel to Combat Internet Defamation
Internet defamation is a regular occurrence. While the common law affords e-defamation victims a right to sue both the original speaker of the defamatory statements and the publisher, Internet anonymity of the original speaker and the publisher's use of Section 230 of the Communications Decency Act of 1996 (CDA), 47 U.S.C. '230 et seq., often make such litigation difficult. However, the CDA also provides a basis for combating Internet defamation. In particular, the CDA allows plaintiffs to definitively identify actions that make Internet publishers liable.
Typical Internet site protocol, such as a Terms of Use agreement, generally gives rise to promissory estoppel and thereby a basis for action against both the defamer and the defamer's publisher. Disparaging another's reputation using the Internet is just as defamatory as slanderous speech or libelous content. E-defamation is subject to the same legal ramifications under common law as traditional defamation. A plaintiff must plead and prove the same elements of defamation in either case to prevail.
Since the Dendrite court ( Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001)) required a rather high threshold to be met in order to compel Internet service providers to disclose the defamer's identifying information, it is generally easier for a defamed party to start proceedings against the publisher of the Internet defamation. Even if the plaintiff is able to compel the Internet publisher to disclose such information, it is generally in the form of an Internet Protocol address, which may not be sufficient to identify the defamer due to the use of shared IP addresses resulting from the common use of public Internet access, such as Wi-Fi hotspots.
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