West Virginia Law Review

Document Type



Plaintiffs whose reputations have suffered irreparable injury from the distribution of defamatory statements have generally been permitted by law to recover damages from the enterprises that distributed the publications known to contain the defamatory material. However, when the enterprise that knowingly distributed the injurious content is an Internet service provider ("ISP"), present law denies that same plaintiff recovery. This perception of ISP immunity flows from a decision by the United States Court of Appeals for the Fourth Circuit in Zeran v. America Online, Inc., where the Court extended certain immunities offered by the Communications Decency Act of 1996 (the "CDA"). In Zeran, the Fourth Circuit interpreted the CDA's express grant of "publisher" immunity to Internet service providers as including immunity from liability as a "distribu- tor" as well. This decision, however, has left those who suffer irreparable harm from the distribution of such material without legal recourse, even when the ISP that has distributed such material knows or has reason to know of its de- famatory content. This Article offers a comprehensive examination ofthis issue and a cri- tique of the Fourth Circuit's decision. It includes a thorough discussion of why the plain meanings of the relevant provisions of the CDA, the legislative histo- ry and purposes of those provisions, and the common law all suggest that this decision was in error. It highlights the harmful consequences of that decision. And it demonstrates that there is nothing so unique in Internet communication, nor in the technologies associated with it, that should warrant relieving ISPs from the responsibilities to reasonably protect persons from the irreparable harm to reputation that can result from an ISP's knowing distribution of defam- atory materials.



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