Forum of Incident Response & Security Teams/Forum_of_Incident_Response_and_Security_Teams_FIRST_October_1994.iso/papers/legal/libel.txt

Text File | 1994-07-04 | 9KB | 180 lines

Internet World, Nov./Dec. 1993

INTERNET LIBEL: IS THE PROVIDER RESPONSIBLE?

By Mike Godwin <[e-mail]>


It's a fear every Internet service provider faces at least once: How
responsible am I going to be if someone libels someone else on my system?
The law of libel is very old, but the law of the Internet is still
forming, so there's no settled answer about a provider's responsibility.
But one important case suggests what the eventual answer may be, and that
case is good news for service providers.


If you spend time on Usenet or CompuServe or the WELL, you may already
have heard about the summary-judgment decision in Cubby, Inc. v.
CompuServe, a libel case. What you may not know is why the decision is
such an important one. By holding that only if CompuServe had "actual
knowledge" of the defamation would it be liable, the court in this case
showed a good understanding of the First Amendment needs of most
online-communication services. Although the case is only a district-court
case, and therefore is not a binding precedent on other jurisdictions,
since it's the first decision to deal directly with these issues this case
may turn out to be a model for future decisions in other courts.


The full name of the case, which was decided in the Southern District of
New York, is Cubby Inc. v. CompuServe (776 F. Supp. 135, 1991). Basically,
CompuServe contracted with a third party for that user to conduct a
special-interest forum (called "Rumorville") on CompuServe. The plaintiff
claimed that defamatory material about its business was posted a user in
that forum, and sued both the forum host and CompuServe. CompuServe moved
for, and received, summary judgment in its favor.


Now, the plaintiff in this case arguably had good reason to believe that
he'd win. The common law of libel is that a person who repeats or
otherwise "republishes" defamatory material is just as liable for the
defamation as the person who originally published it. By that reasoning,
CompuServe should be held just as liable for any defamatory statements in
"Rumorville" as the proprietors of "Rumorville" themselves.


In the Cubby case, however, federal judge Peter K. Leisure held in his
opinion that CompuServe is less like a publisher than like a bookstore
owner or book distributor. First Amendment law allows publishers to be
liable for defamation, but not bookstore owners, because holding the
latter liable would create a burden on bookstore owners to review every
book they carry for defamatory material. This burden would "chill" the
distribution of books (not to mention causing some people to get out of
the bookstore business) and thus would come into serious conflict with the
First Amendment.


So, although we often talk about BBSs and Internet nodes as having the
rights of publishers and publications, this case hits on an important
distinction. How are publishers different from bookstore owners? Because
we expect a publisher (or its agents) to review everything prior to
publication. But we *don't* expect bookstore owners to review everything
prior to sale. Similarly, in the CompuServe case, as in any case involving
an online service in which users freely post messages for the public (this
excludes Prodigy), we wouldn't expect the online-communications service
provider to read everything posted *before* allowing it to appear.


It is worth noting that the Supreme Court case on which Judge Leisure
relies is Smith v. California--an obscenity case, not a defamation case.
Smith is the Supreme Court case in which the notion first appears that it
is generally unconstitutional to hold bookstore owners liable for content
they did not know about. So, if Smith v. California applies in a
online-service or BBS defamation case, it certainly ought to apply in an
obscenity case as well.


Thus, Cubby, Inc. v. CompuServe sheds light not only on defamation law as
applied in this new medium but on obscenity law as well. This decision is
a first step towards clarifying for concerned service providers what their
obligations and liabilities are under the law.


But even though the Cubby case is a good first step, there's still a long
and somewhat murky road ahead. Here's one possible problem: in the Cubby
case, Judge Leisure makes much of the fact that the private forum on
CompuServe had a contractual relationship with CompuServe--that it wasn't
merely an agent or employee or user of CompuServe but was, rather, a
subcontractor. This particular legal relationship is one that tends to
limit the liability of the principal party for most tortious activity
(such as libel). What would happen if a regular CompuServe user (rather
than the operator of a moderated forum) posted something libelous?


A closer look at the reasoning in the Cubby case suggests that the result
might be the same. Remember, the reasoning of Smith v. California does not
depend on whether the publisher/distributor is party to a subcontract.
Judge Leisure's holding in the case doesn't mention the contract
relationship at all: ".Given the relevant First Amendment considerations,"
he writes, "the appropriate standard of liability to be applied to
CompuServe is whether it knew or had reason to know of the allegedly
defamatory Rumorville statements."


For an Internet service provider, this ruling provides a certain amount of
comfort. After all, *no* service provider who carries Usenet can claim to
have knowledge of everything that's said in all the newsgroups. Sure, it
might be theoretically possible to pre-screen all the content of Usenet
before forwarding it, but that would more or less destroy the value of
Usenet--immediacy. Plus, the "flooding" algorithm that is used to
distribute Usenet postings tends to thwart attempts at censorship at
anything other than the newsgroup level.


Judge Leisure shows a recognition of the immediacy, the high volume, and
the uncensored nature of CompuServe (and, by implication, of even larger
conferencing systems such as Usenet), when he writes the following:


"CompuServe's CIS product is in essence an electronic, for-profit library
that carries a vast number of publications and collects usage and
membership fees from its subscribers in return for access to the
publications. CompuServe and companies like it are at the forefront of the
information industry revolution. High technology has markedly increased
the speed with which information is gathered and processed; it is now
possible for an individual with a personal computer, modem, and telephone
line to have instantaneous access to thousands of news publications from
across the United States and around the world. While CompuServe may
decline to carry a given publication altogether, in reality, once it does
decide to carry a given publication, it will have little or no editorial
control over that publication's contents. This is especially so when
CompuServe carries the publication as part of a forum that is managed by a
company unrelated to CompuServe."


What Leisure says here about "publications" on CompuServe can just as
easily be said about Usenet newsgroups, or about mailing lists. Most
newsgroups and mailing lists are fairly autonomous--for the most part, no
pre-screening (that is to say, no centralized editing process) is
required.


Leisure goes on to make the bookstore/library analogy even more explicit:
".CompuServe has no more editorial control over such a publication
['Rumorville'] than does a public library, book store, or newsstand, and
it would be no more feasible for CompuServe to examine every publication
it carries for potentially defamatory statements than it would be for any
other distributor to do so. "


Now, if other courts accept Judge Leisure's reasoning--and there's no
reason to think they won't--so far so good: Sysops and sysadmins won't be
held liable for what they don't know about or have no reason to know
about. But that still leaves us with a sticky question (and one that's not
addressed in Cubby Inc. v. CompuServe): what about when the sysadmin
*does* know about a potentially libelous posting to a newsgroup he or she
carries?


Although Judge Leisure does not address this problem, the bookstore
analogy still suggests an answer. Nowadays, given the First
Amendment-privileged status of bookstore owners, few plaintiffs even
*think* of suing the bookstore that sells a defamatory book, even though a
bookstore owner may actually know of the possibility that the book is
defamatory (as, for example, in well-publicized libel cases). Instead,
they go after the author and the publisher. If an Internet provider is
more like a bookstore or library than like a publisher (who, after all,
edits and produces a book, normally for profit), perhaps courts will
conclude that the best rule is to give them the same routine protections
that bookstores, newsstands, and libraries routinely assume they have.


Whether this rule will find its way into the caselaw remains to be seen,
of course. In the meantime, readers here should take comfort in the fact
that I know of no cases in which an Internet service provider *has* been
held liable for defamation by a third-party subscriber. I'll offer some
speculations as to why this is so in an upcoming column.