Newsgroups: misc.legal.computing
From: [m--mo--c] at [eff.org] (Mike Godwin)
Subject: Re: Court Rulling on Computer BBs Question
Date: Wed, 31 Mar 1993 01:40:50 GMT

COMPUSERVE CASE A STEP FORWARD IN FIRST AMENDMENT PROTECTION FOR ONLINE
SERVICES.


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 only if CompuServe had
"actual knowledge" of the defamation would it be liable, the court in this
case correctly analyzed the First Amendment needs of most
online-communication 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 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. 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 (selected by Danny Weitzner):

"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)




-- 
Mike Godwin,    |"Fear of serious injury cannot alone justify suppression
[m--mo--c] at [eff.org]| of free speech and assembly. Men feared witches and
(617) 576-4510  | burned women. It is the function of speech to free men
EFF, Cambridge  | from the bondage of irrational fears."  --Brandeis