Date: Tue, 23 May 1995 16:20:15 -0400 (EDT) From: CYBER@HULAW1.HARVARD.EDU Subject: Harvard Law School Seminar: Libel and Liability To: cyber@HULAW1.HARVARD.EDU Mime-Version: 1.0 ****************************************************************************** H A R V A R D L A W S C H O O L ***************** Seminar on Law, Information, and Technology ***************** *** *** *** ONLINE LIABILITY *** VE *** RI *** *** *** *** Guests: Jan Constantine; ***** ***** General Counsel, Delphi Internet **** TAS **** Robert Charles; General Counsel & *** *** Chief of Staff, House Subcommittee on ***** National Security *** David Johnson; Executive Director, * Electronic Frontier Foundation ****************************************************************************** Send requests, comments, and new subscription info to cyber@law.harvard.edu ****************************************************************************** WE LIVE! The Harvard Law School cyber project will continue over the summer. Planned dispatches include education and equal access. Member participation is critical to keeping the project to more than just a mailing list; substantive feedback as well as requests for future topics are welcome. Please consider dropping us a line. ONLINE LIABILITY: THE ISSUES Who is responsible--in addition to the original posters--for legal violations on the information superhighway? Network providers? Sysops? The potential for anonymity makes some people think it unsatisfying to have the buck stop solely with whomever actually wrote the offending post. Possible problems include defamation, obscenity, and copyright infringement; each might have different standards because (1) defamation is generally governed by state law, obscenity by both state and federal laws, and copyright generally by federal law only and (2) each action derives from different sources (for example, defamation is more-or-less common law, while copyright is based on statute). Other problems include where these disputes will be heard and when liability does and should attach: from the moment of the violation or from the point when the provider of information services learns of the violation? All of these issues assume that the law can or should be involved at all. Can these laws be enforced? Will they have a "chilling effect" on content providers at precisely the time that a new medium is trying to take off and revolutionize the way we communicate? The absence of clear rules may already be limiting communications. Consider, for example, Delphi counsel Jan Constantine's recommendation to sysops and network providers in light of legal uncertainty for liability: "When in doubt, take it out." NOT A LOT OF CONCRETE ANSWERS--AND A COUPLE OF CONTRADICTIONS Currently, most network providers and system operators seem to engage in a form of conscious indifference: what they don't know won't hurt them. If knowledge on the part of the provider of information services is the basis of liability that might not be such a bad strategy; providers of information services face the double bind of necessarily representing themselves as a content providers (which increasingly means offering access to the Internet and some form of distilling the information therein) in order to compete while staying hands-off enough to avoid responsibility for problems. Attempts to stop offensive communication on the Internet by holding content providers responsible may be unrealistic and undesirable. No single group can successfully monitor all of the communications on, say, Internet newsgroups it might be carrying. Insisting that they do by penalizing them for harmful messages they carry might result in the exodus of content providers to safe harbors in other countries, or to the creation of information services with no coffers to raid. As one participant noted only slightly enigmatically, the "best way to eliminate deep pockets is to make pants without pockets." On the other hand, inaccurate or harmful information on the Net has the potential to cause more damage than on most other forms of communication. The Net presents a highly leveraged and effortless way to attempt to destroy someone's reputation or reprint a copyrighted article. Is the law powerless to protect individuals from attacks on the Internet that would otherwise be actionable? Should enforcement difficulties justify abandoning any attempt to regulate the Net? WHAT THE CASES DO SAY The courts have offered a few recent glimpses into judicial thinking about damaging or disparaging material discovered on the electronic frontier. In Cubby v. CompuServe, a New York court rejected a claim against a network and information provider (CompuServe) for material on one of its many bulletin boards. The district court reasoned that CompuServe's control over the material in question was akin to that of a bookstore owner. Under this standard, an individual who merely offers material for public consumption is not accountable for its content. A Florida court did assign liability for copyright and trademark violations in Playboy Enterprises v. Frena. In that case, the defendant operated a bulletin board where he distributed materials which included copyrighted Playboy photographs. The company brought claims for both copyright and trademark infringement. The fact that the defendant did not intend to infringe Playboy's copyright and may not have even been aware that his subscribers violated Playboy's copyright was disregarded. According to Robert Charles, however, Stratton v. Prodigy is the case to watch. Unlike CompuServe and other commercial information providers, Prodigy had advertised itself as a content editor and therefore might find itself subject to a stricter standard of responsibility. The legal standard formulated in this case might have a profound affect on the information services industry. It's not just big bad operators who will feel the impact of expanded liability. Anyone who communicates across state borders may be subjected to criminal sanctions. A Tennessee postal inspector downloaded pornographic material from a computer bulletin board based in San Francisco in order to prosecute the California couple who operated the service under presumably more conservative Tennessee community standards. When "community standards" are the touchstone for figuring out what's legally obscene and what's not, the standard of obsencity of our most prim communities might dictate standards everywhere on the Net so long as those communities are conceivably able to access the material in question. LOFTIER THINKING On the other side of the need to legally address harmful communications is the importance of preserving the free flow of information. An overly strict standard of liability may, as Justice Frankfurter once said, "burn the house to roast the pig." In addition to "willful blindness" on the part of access providers, critics of the current law have cited the chilling effect of knowledge-based standards for liability as cause for drafting legislation to protect the free flow of information. One advocate of this position, David Johnson of the Electronic Frontier Foundation, has proposed an "Electronic Forwarding Act" as a means to balance these interests in all forms of wrongdoing on the Net. His law would grant immunity to forwarders of information unless they adopted the material as their own or took active steps to protect the anonymity of the source of the harmful information. This has the virtue of calibrating the responsibility of a net provider to the degree of anonymity the provider actively affords the "real" culprit. Perhaps the most intriguing aspect of Johnson's proposal is his suggestion that cyberspace should be deemed a seperate entity for the purposes of jurisdiction. While a radical departure from the current state of affairs (no American court would easily defer to the judgment of such a body even if it formally existed), this suggestion may reflect the reality that even in the absence of outside legal intervention, the Net has its own rule of law. Moreover, this proposal may more accurately reflect the expectations of network users who view the Internet dialogue as discussion amongst like minded groups rather than a forum for the imposition of their views on others. The strongest objection to independent judicial review pertains to those outside of the network whose reputation, work or goodwill may be damaged on the Internet. Which background norms should guide the adjudication of their rights? In the short term, the "hobbyist sysop"--someone who runs an electronic coffeehouse in some corner of the Net--may have to contend with the fact that much of the rest of the world is now knocking on the door. The mainstreaming of the net brings with it the importation of standards and expectations from the "real world." As the frontier is settled the anarchy and lawlessness that have characterized much of the net will be challenged, for better or worse. Big companies can afford the legal battles that will inevitably unfold; small sysops, at this point unable even to obtain insurance because of the wild uncertainties and lingering novelty of the whole enterprise, will be bearing sizable personal risk. The risk will be roughly correlated to the ways in which they try to permit unfettered (and un-pre-censored) exchange among participants while setting an overall tone and reserving the right to move information from view and eject unruly members. That might be unfortunate, for it is that sort of model that has held the most promise for an innovative and creative use of the new technologies. The alternate poles of bland one- way commercialization and cacophonous free-for-all remain. ------------------------------------------------------------------------------ This dispatch was prepared by Heidi Messer and Jonathan Zittrain of HLS (hmesser and zittrain@law.harvard.edu).