108 lines
5.4 KiB
Plaintext
108 lines
5.4 KiB
Plaintext
Volume Four, Issue Thirty-Seven, File 9 of 14
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THE COMPUSERVE CASE
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A STEP FORWARD IN FIRST AMENDMENT PROTECTION FOR ONLINE SERVICES
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Presented by Electronic Frontier Foundation
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Introduction
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~~~~~~~~~~~~
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by Mike Godwin (mnemonic@eff.org) in EFFector Online 3.03
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By now you may have heard about the summary-judgment decision in Cubby, Inc. v.
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CompuServe, a libel case. What you may not know is why the decision is such an
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important one. By holding that CompuServe should not be liable for defamation
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posted by a third-party user, the court in this case correctly analyzed the
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First Amendment needs of most online services. And because it's the first
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decision to deal directly with these issues, this case may turn out to be a
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model for future decisionsin other courts.
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The full name of the case, which was decided in the Southern District of New
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York, is Cubby Inc. v. CompuServe. Basically, CompuServe contracted with a
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third party for that user to conduct a special-interest forum on CompuServe.
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The plaintiff claimed that defamatory material about its business was posted a
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user in that forum, and sued both the forum host and CompuServe. CompuServe
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moved for, and received, summary judgment in its favor.
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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
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publishers to be liable for defamation, but not bookstore owners, because
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holding the latter liable would create a burden on bookstore owners to review
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every book they carry for defamatory material. This burden would "chill" the
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distribution of books (not to mention causing some people to get out of the
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bookstore business) and thus would come into serious conflict with the First
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Amendment.
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So, although we often talk about BBSs as having the rights of publishers and
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publications, this case hits on an important distinction. How are publishers
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different from bookstore owners? Because we expect a publisher (or its agents)
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to review everything prior to publication. But we *don't* expect bookstore
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owners to review everything prior to sale. Similarly, in the CompuServe case,
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as in any case involving an online service in which users freely post messages
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for the public (this excludes Prodigy), we wouldn't expect the online-
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communications service provider to read everything posted *before* allowing it
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to appear.
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It is worth noting that the Supreme Court case on which Judge Leisure relies is
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Smith v. California -- an obscenity case, not a defamation case. Smith is the
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Supreme Court case in which the notion first appears that it is generally
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unconstitutional to hold bookstore owners liable for content. So, if Smith v.
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California applies in a online-service or BBS defamation case, it certainly
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ought to apply in an obscenity case as well.
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Thus, Cubby, Inc. v. CompuServe sheds light not only on defamation law as
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applied in this new medium but on obscenity law as well. This decision should
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do much to clarify to concerned sysops what their obligations and liabilities
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are under the law.
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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Highlights of the CompuServe Decision
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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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by Danny Weitzner (djw@eff.org) in EFFector Online 3.03
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"CompuServe's CIS [CS Information Service] product is in essence an electronic,
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for-profit library that carries a vast number of publications and collects
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usage and membership fees from its subscribers in return for access to the
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publications. CompuServe and companies like it are at the forefront of the
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information industry revolution. High technology has markedly increased the
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speed with which information is gathered and processed; it is now possible for
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an individual with a personal computer, modem, and telephone line to have
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instantaneous access to thousands of news publications from across the United
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States and around the world. While CompuServe may decline to carry a given
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publication altogether, in reality, once it does decide to carry a given
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publication, it will have little or no editorial control over that
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publication's contents. This is especially so when CompuServe carries the
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publication as part of a forum that is managed by a company unrelated to
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CompuServe. "... CompuServe has no more editorial control over ... [the
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publication in question] ... than does a public library, book store, or
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newsstand, and it would be no more feasible for CompuServe to examine every
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publication it carries for potentially defamatory statements than it would for
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any other distributor to do so."
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"...Given the relevant First Amendment considerations, the appropriate standard
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of liability to be applied to CompuServe is whether it knew or had reason to
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know of the allegedly defamatory Rumorville statements."
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Cubby, Inc. v. CompuServe, Inc. (90 Civ. 6571, SDNY)
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For the full opinion, please see:
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CUBBY, INC., a Corporation d/b/a SKUTTLEBUT, and ROBERT G.
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BLANCHARD, Plaintiffs, v. COMPUSERVE INC., d/b/a RUMORVILLE,
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and DON FITZPATRICK, individually, Defendants
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No. 90 Civ. 6571 (PKL)
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
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NEW YORK
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October 29, 1991, Decided
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October 29, 1991, Filed
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