Is the Owner of a Blog an "Interactive Service Provider"?

by Lee Gesmer on September 9, 2005

Communications Decency Act. Traffic Power.Com has sued Aaron Wall, owner of the Search Engine Optimization Blog, alleging defamation and misappropriation of trade secrets.

Assuming that the offending material was not written by Wall himself (but rather by one of his posters), the defamation claim against him is likely to be barred by the federal Communications Decency Act (CDA), which provides in part:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

If Wall is not the publisher or speaker of the offending words, he cannot be liable for their publication on his blog.

Although the term “interactive computer service” (ISC) is poorly defined, the courts have held that it includes not only traditional ISPs, but also web site hosts such as AOL. It’s hard to see why the definition shouldn’t extend to blog site owners.

Assuming that Wall is found to be an ISC, he’s halfway home. A number of courts have held that the law protects ISCs from defamation claims.

Immunity for trade secret misappropriation is more problematic. The CDA provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” However, the law fails to define “intellectual property.” While the three traditional branches of IP are unquestionably covered by this provision (patents, copyrights and trademarks, all of which are federal IP rights), it’s not clear whether trade secrets, which are a construct of state law and which have elements that lend themselves to both intellectual property analysis and tort analysis, will be treated as “intellectual property.”

Thus, this case has the potential to answer two important questions: are bloggers covered by the CDA, and does liability for trade secret claims fall within the CDA? Stay tuned….

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