Who's responsible in the battle for Internet freedom

This is the fifth in a series of articles presenting the legal foundations of Internet expression.

Who is legally responsible for the content of materials posted electronically via services such as value-added networks (the predecessors of the World Wide Web such as CompuServe, Prodigy and AOL) and the Web itself?

Three U.S. lawsuits established an important basis for discussions of Internet freedom and responsibility:

Cubby v CompuServe (1991)Stratton Oakmont v Prodigy (1995)Blumenthal v Drudge & AOL (1998)

CompuServe was one of the earliest value-added networks (VAN): it started its communications service in 1979. The company offered facilities for organizations and individuals to sponsor their own, locally-controlled discussion forums, over which CompuServe exerted no control whatsoever. Cameron Communications, Inc.(CCI) established the Journalism Forum; Don Fitzpatrick Associates (DFA) established the newsletter Rumorville distributed in the Journalism Forum. Don Fitzpatrick published nasty comments about a competing newsletter called Skuttlebut. The defamed owners, Cubby Inc. and Robert Blanchard launched a civil lawsuit for libel against everyone involved – including CompuServe. The significant finding by the U.S. District Court, Southern District, of New York was as follows (quoting directly from the judgment dismissing the claims against CompuServe):

Based on the undisputed facts, the Court concludes that neither CCI nor DFA should be considered an agent of CompuServe. CompuServe, CCI, and DFA are independent of one another. CompuServe has simply contracted with CCI for CCI to manage the Journalism Forum; under the contract, CCI "agrees to manage, review, create, delete, edit and otherwise control the contents of the [Journalism Forum], in accordance with editorial and technical standards and conventions of style as established by CompuServe." …. CompuServe has thereby delegated control over the assembly of the contents of the Journalism Forum to CCI. CompuServe's ultimate right under the contract to remove text from its system for noncompliance with its standards merely constitutes control over the result of CCI's independent work. This level of control over the Journalism Forum is insufficient to rise to the level of an agency relationship.

A few years later, a similar case arose involving the Prodigy VAN (no longer actively in business) when an anonymous poster on the service's Money Talk bulletin board (run by Charles Epstein) claimed in October 1994 that the securities investment firm Stratton Oakmont and its president, Daniel Porush, were involved in criminal fraud. The offended victims of this smear sued Prodigy and the anonymous poster; they specifically cited Prodigy's stated policies trumpeting its family-friendly environment. In May 1995 (the date is important), Judge Stuart L. Ain of the Supreme Court of New York, Nassau County, wrote that "PRODIGY held itself out as an online service that exercised editorial control over the content of messages posted on its computer bulletin boards, thereby expressly differentiating itself from its competition and expressly likening itself to a newspaper." The judge quoted an interview by the company's director of market programs and communications proudly announcing,

"We make no apology for pursuing a value system that reflects the culture of the millions of American families we aspire to serve. Certainly no responsible newspaper does less when it carries the type of advertising it published, the letters it prints, the degree of nudity and unsupported gossip its editors tolerate."

Well, that blew it. Prodigy was found responsible for the libelous content. Judge Ain wrote, "…at least for the limited purpose of monitoring and editing the "Money Talk" computer bulletin board, PRODIGY directed and controlled Epstein's actions."

The third case bearing on responsibility for posted content concerns the notorious (or famous, depending on your political leanings) Matt Drudge, who posted rumors in August 1997 in his AOL DRUDGE REPORT service asserting that journalist Sidney Blumenthal, then beginning to work with the Clinton administration, was abusive towards his wife but that his abuse was being covered up. Blumenthal sued both Drudge and AOL. Even though AOL had a contract with Drudge allowing officials of the company to edit or to remove content from the column if they determined that it violated AOL's terms of service, Judge Paul L. Friedman of the United States District Court for the District of Columbia ruled that AOL was not liable for Drudge's actions.

The key difference between the situation for Prodigy in 1995 and AOL in 1998 was Section 230 of the Communications Decency Act of 1996 (47 USC 230) which indemnified ISPs against liability for what their users post online: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Through this legislation, Congress effectively granted common carrier status to ISPs.

In the next column, I'll look at the situation in Italy, where a judge convicted three Google executives in February 2010 for "allowing" an abusive video to be posted online.

Learn more about this topic

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