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- Volume Four, Issue Thirty-Seven, File 9 of 14
-
- THE COMPUSERVE CASE
- A STEP FORWARD IN FIRST AMENDMENT PROTECTION FOR ONLINE SERVICES
-
- Presented by Electronic Frontier Foundation
-
-
- Introduction
- ~~~~~~~~~~~~
- by Mike Godwin (mnemonic@eff.org) in EFFector Online 3.03
-
- By now you may 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 CompuServe should not be liable for defamation
- posted by a third-party user, the court in this case correctly analyzed the
- First Amendment needs of most online services. And because it's the first
- decision to deal directly with these issues, this case may turn out to be a
- model for future decisionsin other courts.
-
- The full name of the case, which was decided in the Southern District of New
- York, is Cubby Inc. v. CompuServe. Basically, CompuServe contracted with a
- third party for that user to conduct a special-interest forum 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.
-
- Judge 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 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. 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 should
- do much to clarify to concerned sysops what their obligations and liabilities
- are under the law.
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-
-
- Highlights of the CompuServe Decision
- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
- by Danny Weitzner (djw@eff.org) in EFFector Online 3.03
-
- "CompuServe's CIS [CS Information Service] 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. "... CompuServe has no more editorial control over ... [the
- publication in question] ... 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 for
- any other distributor to do so."
-
- "...Given the relevant First Amendment considerations, 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."
-
- Cubby, Inc. v. CompuServe, Inc. (90 Civ. 6571, SDNY)
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-
- For the full opinion, please see:
-
-
- CUBBY, INC., a Corporation d/b/a SKUTTLEBUT, and ROBERT G.
- BLANCHARD, Plaintiffs, v. COMPUSERVE INC., d/b/a RUMORVILLE,
- and DON FITZPATRICK, individually, Defendants
-
- No. 90 Civ. 6571 (PKL)
-
- UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
- NEW YORK
-
-
- October 29, 1991, Decided
- October 29, 1991, Filed
-
-