Western Law

Benjamin Zipursky Lectures on Online Defamation

Benjamin Zipursky with TLRG Professors

(l-r) Profs. Andrew Botterell, Zoe Sinel, Jason Neyers, Benjamin Zipursky and Stephen Pitel

On February 29, Benjamin Zipursky, Professor of Law and holder of the James H Quinn ‘49 Chair in Legal Ethics at Fordham Law School, delivered the first Tort Law Research Group Public Lecture of the 2015-16 academic year. For an audience of students, faculty, and legal practitioners, Zipursky offered a nuanced critique of the current state of American law with respect to online defamatory statements. Zipursky argued that the law as it stands has essentially eviscerated the republication rule, meaning that a third-party receiving defamatory material from another party can republish that information online with impunity.

To illustrate this unhappy state of affairs, Zipursky drew our attention to two infamous online defamation cases. The first involved a false allegation that the plaintiff, Ms. Batzel, was a descendent of Heinrich Himmler, a leading member of the Nazi Party, and that she possessed art that had been wrongfully taken from German Jews during the Second World War. An email containing these defamatory statements was sent to a third-party, Mr. Cremer, who reposted them in his online newsletter. The second case arose during the aftermath of the Oklahoma City bombing in 1995. Six days after Timothy McVeigh and Terry Nichols blew up a Federal building, killing 168 people, including 19 children (of whom 15 were in the America's Kids Day Care Center), a notice went up on an AOL bulletin board advertising T-shirts emblazoned with the following slogans: “Visit Oklahoma… It’s a Blast” and “Finally a Day Care Center That Keeps Kids Quiet – Oklahoma 1995.” The notice instructed those interested in purchasing these shirts to “Call Ken” and provided a number. The number was Ken Zeran’s. Mr. Zeran had not posted the message and had nothing to do with its content. As a result of the posting, Mr. Zeran received a barrage of angry and threatening phone calls. While AOL eventually removed the defamatory material, Mr. Zeran alleged that it was “negligent in failing to respond adequately to the bogus notices on its bulletin board after being made aware of their malicious and fraudulent nature." In both cases, the third-party conduit of the defamatory information (Mr. Cremer and AOL, respectively) successfully shielded itself from liability by invoking section 230 of the Communications Decency Act, which provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others.

Professor Zipursky explained that the intention behind section 230 of the Communications Decency Act was to protect Internet service providers and message board supervisors from liability when they took steps to filter and censor content on their servers. In a case that predated Congress’ passing of the Act, Stratton Oakmont Inc v Prodigy Services Co, the defendant, Prodigy, was found liable in defamation for permitting an allegedly defamatory statement to be posted on its noticeboard. Prodigy had held itself out as a family-friendly online service. Professor Zipursky argued that a textual interpretation of section 230 supports the argument that it was intended to protect Good Samaritan service providers like Prodigy from liability; its intent was not to protect defendants like Mr. Cremer and AOL who, respectively, intentionally republished defamatory material and negligently permitted it to remain available even after notice was given. In sum, its intent was to protect those who undertake to filter and censor the material posted from liability for defamation by virtue of their positive undertaking.

Professor Zipursky’s research exposes a serious gap in legal protection for private individuals. Given the state of the American law, a third-party in receipt of an email containing defamatory statements about another individual can republish that email by posting it online, thereby making it accessible to countless other individuals, without any fear of liability for the republication. In light of the more serious and widespread damage to one’s reputation that the Internet makes possible, this gap should concern us greatly.

Professor Zipursky is a leading scholar in tort law, tort theory, and jurisprudence. He has published over sixty articles and chapters on subjects ranging from proximate cause and punitive damages in tort law to the varieties of pragmatism within legal philosophy. Of particular note, Professor Zipursky, along with co-author and collaborator Professor John Goldberg of Harvard Law School, is one of the founders of civil recourse theory, an alternative approach to tort law to corrective justice and law and economics accounts.

In addition to his law degree (magna cum laude from NYU), Professor Zipursky holds a BA from Swarthmore College and a Ph.D. in philosophy from the University of Pittsburgh. Before joining the academic ranks, Professor Zipursky clerked for the Honorable Kimba M. Wood (Southern District New York), and practiced as a litigation associate at Arnold & Porter (New York). He has taught as a Visiting Professor at Columbia Law School, Vanderbilt Law School, and Harvard Law School.

The Tort Law Research Group’s public lecture series is generously sponsored by Legate and Associates LLP, a firm that uses a client-centred team approach focused on getting to know each client and assuring that he or she feels empowered. Founding lawyer Barbara Legate, a graduate of Western Law, has argued significant cases in a wide variety of situations, from administrative tribunals to the Ontario Court of Appeal. She was recently named 2014 Lawyer of the Year in Personal Injury Litigation.