Opinion: Kiki Kannibal and the limited immunity to hurt others online
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Rolling Stone’s take on Kiki Kannibal, the online persona of a now 18-year-old girl from Florida, is yet another cautionary tale about the seamy underbelly of the Internet and the downside of living one’s life in front of a webcam. It should be required reading for teenagers and their parents, in the hope of persuading more young people to seek out real friends in their local communities instead of searching for virtual affirmation through the Net. But it also paints a misleading picture of the law’s reach and its supposed inability to stop malicious and hateful speech online.
This statement in particular --
The reality is, there are few repercussions for online harassment. The Communications Decency Act protects Internet publishers from being sued for content -- allowing people to post virtually anything without fear of consequences. Finding some kind of balance between free speech and privacy online will almost certainly become one of the major legal battles of the century.
-- is wrong in one important respect.
The Communications Decency Act is a provision in a 1996 telecommunications law that sought to restrict websites from making indecent material available to minors, while also shielding online publishers from liability for offensive items posted by third parties. The Supreme Court struck down the indecency provision in 1997, but the immunity for websites remains intact.
That immunity applies only to the online publisher or ISP, however. According to attorney Michael Page of Durie Tangri, an expert in the CDA, people who are smeared online can still sue those who post the offending comment, image or video for defamation and, if state law allows it, intentional infliction of emotional distress. ‘The CDA won’t give the poster any defense, but it should give the website on which they’re posted pretty broad defenses,’ Page said.
In other words, people can’t ‘post virtually anything online without fear of consequences.’ If you submit something to a website that injures someone else, you’re fair game for a lawsuit.
Even anonymous commenters can be sued, although it would take extra effort. The victim would have to file a John Doe lawsuit against the commenter, then obtain a subpoena from the court to force the website that published the comment to disclose any identifying information it collected (e.g., an IP address).
Still, Page said, just because a victim can sue, that doesn’t mean he or she should. Lawsuits are expensive propositions, and unless the person who inflicts the injuries has deep pockets, the exercise may not make sense economically. Granted, if the victim is angry enough, he or she may care more about the psychic satisfaction of winning in court than about the financial return. But as Page put it, ‘Litigation as therapy is really inefficient. There are people who are trained much better than we are and they charge much less.’
-- Jon Healey
