Rebooting Cybertort Law

Washington Law Review, Vol. 80, p. 335, 2005

82 Pages Posted: 8 Feb 2007

See all articles by Michael L. Rustad

Michael L. Rustad

Suffolk University Law School

Thomas H. Koenig

Northeastern University


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 Section 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 crae on ISPs to remove or block ongoing tortious activities on their srvices 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 Copyright Act.

Keywords: Communications Decency Act, E-Commerce Directive, Cybertort, Takedown Policy, Internet Service Providers

JEL Classification: K49

Suggested Citation

Rustad, Michael L. and Koenig, Thomas H., Rebooting Cybertort Law. Washington Law Review, Vol. 80, p. 335, 2005, Available at SSRN:

Michael L. Rustad (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

Thomas H. Koenig

Northeastern University ( email )

220 B RP
Boston, MA 02115
United States

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