The Problem With Trying

By: Scott Bradner

Late last year in a column about the problems of defining community standards on the Internet (NW November, 28, 1994) I discussed Carnegie Mellon University's attempt to restrict access to specific offensive USENET newsgroups and said:

"It is part of the function of a university to act in loco parentis for its underage students, but the move to censor, in addition to being futile, might have opened the university to more liability than if it had not acted."

Two weeks ago the on-line industry got the strong message that imperfect censorship can carry the threat of quite significant liability. A court in New York state found that because Prodigy had tried to exercise control over the content of its discussion groups, a suit against Prodigy claiming libel and asking for $200 million should proceed.

This decision was the third in what promises to be a long series of cases that will define the role and responsibilities of on-line data providers and other on-line service providers.

The first of these cases, Daniel vs. Dow Jones & Company, established that on-line data providers were, in fact, distributors and not publishers, and thus "entitled to the same protection as more established means of news distribution." As such they could not be required to ensure the accuracy of the data to any greater extent than traditional printed publications.

The second case, Cubby vs. Compuserve, extended this protection to on-line service providers. As long as the provider does not exercise control over the content of a discussion group it can not be held liable for that content. The on-line service provider is treated the same as a library or bookstore. The only time there can be an issue is if the specific offending material has been brought to the attention of the provider and they fail to remove it.

These cases seemed to make it clear that the on-line data and service providers had been equated to newsstands rather than newspapers when it comes to their liability for damages from incorrect or malicious content. The Prodigy case is one of malicious content. An unidentified person posted a message claiming that a particular stock offering was, among other things, a "100% criminal fraud." Because of the precedents, I would assume that Prodigy's lawyers were quite confident when the case came up.

But the court held that Prodigy tried to be different, it specifically advertised itself as exercising control over the content of messages posted to its discussion groups and was "a family oriented computer network." Prodigy also runs messages through a program to check for offensive language. (This is known as the George Carlin program since that comedian did a routine a few years ago based on the specific words the FCC would not let you say over the radio.) Prodigy did argue that it had since relaxed its policies but was not able to show the court convincing public statements of this change.

The court found that since Prodigy states that it tries to control content it should be treated more like a newspaper and the suit should proceed to determine if libel had occurred.

The court did note that there might be a place in the market for on-line providers who do exercise control and charge a premium for this control. Part of the premium could go to help pay for liability insurance.

This is a hard message for the industry, particularly at a time when more public figures are calling for content control on the Internet to protect our kids (and in some cases, adults) against pornography or to protect everyone against terrorists. The message is that if a provider does try to exersise control and perfection is not maintained, it can be driven out of business by a law suit, and if it does not try, it can be painted as a pornographer. Not a nice message.

Text of the court cases can be found on the web with a URL of http://epic.org/free_speach/

Disclaimer: The above is my opinion, I would not dream of speaking for Harvard and its fleet of well-compensated lawyers, lest they might want to talk to me.