• by Wendy Davis , Staff Writer @wendyndavis, December 24, 2009

Congress decided more than a decade ago that Web site owners shouldn't face liability for defamatory material uploaded by users.

Without that type of protection, set out in the federal Communications Decency Act, the Web would be a lot less interactive. Consider, without immunity, all sites that allowed unmoderated comments would risk damage awards because any problematic user-created posts could result in liability -- no matter how briefly the comments were live.

But the immunity for online sites leaves open the question of what should be done with content that's libelous. Someone who's been defamed can sue the people who created the material, but doing so doesn't insure that the remarks will be removed.

Obviously, many companies that learn of questionable material will remove it on their own, under the theory that it violates their terms of service.

But not always. And a court decision this week in a lawsuit involving Ripoff Report shows that sometimes material can remain live even when the posts have been found to be false and defamatory.

The decision stems from a lawsuit by married couple David and Mary Blockowicz and their oldest daughter, Lisa Blockowicz. They alleged that the ex-husband of another daughter, and his associate, pseudonymously authored a host of untrue and harmful statements about the family on Ripoff Reports.

The authors didn't appear in court to defend themselves, and in October, U.S. District Court Judge James Holderman in the northern district of Illinois entered a default judgment in favor of the Blockowicz family. Holderman ruled that the posts were defamatory and ordered the authors to pay $20,000 damages and take down the comments.

The authors did not, so the Blockowiczs' lawyers wrote to Ripoff Report and asked the site to remove the material.

Ripoff Report responded by arguing that the injunction can't be enforced against the site because it wasn't a party to the case. "Using a sports analogy, Plaintiffs have taken the field alone, played the game without any other team present, declared themselves the winners, and then provided notice of the outcome to the losing team insisting the result is binding upon them," the company argued.

On Monday, Holderman issued an opinion agreeing with Ripoff Report. "The court is sympathetic to the Blockowiczs' plight," he wrote. "They find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view."

While the site's argument seems absolutely sound legally, the result -- that the material will be online forever -- is clearly problematic to many observers.

"So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value," writes media attorney Ben Sheffner.

Santa Clara University law professor Eric Goldman adds: "Although this is the right doctrinal result, the normative issues are still gnawing at me. I'm troubled that online content could be categorically off-limits from compelled takedown based on a service provider's choices."

Apart from whether Ripoff Report can be required to take down the material, the site seems to have a business interest in removing the posts -- posts that a judge has already ruled are defamatory. Obviously if Ripoff Report contains enough demonstrably false information, it will eventually lose credibility with readers. One would think that was reason enough for the site to revise its approach