Cyberspace provides an ideal legal environment for tortfeasors and online criminals because Internet Service Providers (ISPs) have no duty to mitigate harms caused by ongoing torts, crimes, and infringing acts. Courts have stretched Congress's express language in § 230 of the Communications Decency Act from the narrow purpose of immunizing ISPs as publishers to the expanded purpose of shielding them from all tort liability. This Article proposes imposing a limited duty of care on ISPs to remove or block ongoing tortious activities on their services when they have been given actual notice. This reform will harmonize American ISP liability law with the European Union's Electronic Commerce Directive, which imposes an affirmative duty on ISPs to take down objectionable materials. It also will unify U.S. law by creating procedures consistent with the takedown policy mandated by the Digital Millennium Copyright Act.
Michael L. Rustad & Thomas H. Koenig,
Rebooting Cybertort Law,
80 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol80/iss2/3