From richard@vanbc.wimsey.com Wed Jul 12 10:25:37 1995 Return-Path: Received: by vanbc.wimsey.com (Smail-3.1.29.1 #29) id m0sW5XV-00008fC; Wed, 12 Jul 95 10:25 PDT Message-Id: From: richard@vanbc.wimsey.com (Richard Pitt) X-Mailer: SCO System V Mail (version 3.2) To: richard Date: Wed, 12 Jul 95 10:25:37 PDT Status: RO Prodigy in Canada: On line libel revisted by Peter Sim Being sued for libel is a constant danger for Internet serv- ice providers and bulletin board operators. Every day there must be hundreds of messages in various newsgroups and conferences which cross the legal boundaries between fair comment and libel. Sooner or later someone is going to sue as a result of one of these messages and one of the defendants is likely to be the Internet site or bulletin board operator where the message originated. In a column I wrote a year ago, I wrote that the law regard- ing the legal liability of bulletin board operators was unsettled. There had been no Canadian or English cases on the issue and it was not clear how the courts would apply existing legal principles to a new medium of communication. A year later, not much has changed. There have still been no Canadian cases and one English case recently settled out of court. However, there has been one recent American decision which has received a good deal of comment and may lead Canadian bul- letin board operators down some false trails. The case is Stratton Oakmonth Inc. and Daniel Prush v. Prodigy Services Company et al. It was decided on May 24, 1995 by the Supreme Court of New York. In 1994 an unknown user of the Prodigy "Money Talk" bulletin board posted a message which accused the plaintiffs of criminal dishonesty. The plaintiff sued Prodigy for libel. The court's decision was a ruling on a preliminary motion to determine whether Prodigy was the publisher of the statements in question. Prodigy relied on the 1991 case of Cubby v. CompuServe where is was held that CompuServe was not liable for material stored on its system. The material had been prepared by another commercial publisher and CompuServe did not review it before it was uploaded onto its computer. CompuServe was acting not as an active pub- lisher or editor but as an electronic library. The court held that CompuServe was not a publisher but a mere distributor of these materials. Under New York law a distributor such as a book- store or news agent is not responsible for the contents of the publications it distributes unless it has actual notice that a particular publication contained a libel. In this case, the court held that Prodigy was a publisher and not a mere distributor. The court noted that Prodigy's promo- tional materials it emphasized its commitment to family values and compared its practices to a responsible family newspaper. Prodigy had published content guidelines for its bulletin boards and employed screening software and board leaders to enforce these guidelines. By exercising editorial control over the con- tent of its messages, Prodigy had put itself in the position of a newspaper publisher and was responsible for the contents of all messages which appeared on its system. These two cases appear to provide computer system operators, in New York state at least, with a clear choice. If they exercise no control whatsoever of the contents stored on their systems they will be protected from liability except where they have actual notice of a complaint. However, if they exercise any con- trol over anything, they will become full liable for everything. The situation in Canada is much less clear. It is by no means certain that Canadian courts will follow the decisions in Com- puServe and Prodigy. Canadian systems operators who thought they could protect themselves by taking a "hands off" approach to con- tent may get a rude surprise. The Canadian and American law of libel both have their roots in the English Common Law but the courts have developed the law in different directions. Keep in mind also that each province and state has its own legislation or case law which may differ from the national norms. Quebec and Louisiana have a completely dif- ferent legal system based on the French Civil Code. Their law of defamation is beyond the scope of this article. The American courts have been more generous in their pro- tection of freedom of expression than the Canadian and English courts. In 1964 the United States Supreme Court held in the case of New York Times v. Sullivan that the law of libel was subject to the guarantee of freedom of speech in the First Amendment to the United States Constitution. The court in the CompuServe case applied First Amendment principles in holding that CompuServe was not responsible for material it distributed without actual knowl- edge that it was libelous. Canadian courts have not yet resolved the extent to which our Charter of Rights and Freedoms applies to the law of defamation. On the specific question of the liability of distributors,there are significant differences between Canadian and American law. In English and Canadian law, every sale or delivery of a libelous document is considered to be a publication. Therefore, in the case of a printed publication everyone from the author to the bookstore is potentially liable. If this principle were applied to electronic media, every internet site which receives and passes on a message in a news group would be considered a publisher. However, a passive distributor of a libelous publication can escape liability if it can show that it did not know that the publication contained a libel and that this ignorance was not due to want of case on its part. In other words, there appears to be at least some obligation on a distributor to check the pub- lications it distributes for defamatory matter. The extent of this duty may depend on the nature of the publication and the character of the distributor. A public library is likely to have a higher degree of responsibility with respect to books than a news agent is for daily papers. The lack of any clear case law in Canada forces Canadian internet service providers to steer a course between a rock and a whirlpool. The easiest response would be to nothing to monitor content and argue that they had no knowledge of the defamatory messages on their system. This approach might work in the U.S. but in Canada it carries the risk that a court might consider a completely passive approach to messages being transmitted on a system to be negligence. On the other hand, if operators monitor content too closely, there is a risk that they will be considered active publishers of everything on their systems. There is no easy technological solution to this problem. A software program which screens messages for lists of banned words will not work. It is the content of a message and not the words which make it libelous. Strings of obscenities are often not con- sidered defamatory. The worst libels are those which are phrased in polite language. The long term solution is legislation which clearly defines the duties of system operators respecting defamatory matter on their systems. I would like to see a law which protects system operators from liability for material appearing on their system unless they have received explicit notice (eg. by a message to "postmaster") that the material may be defamatory and fail to take appropriate action. The legislation should set the standard of care required by bulletin boards and Internet sites at a level which will not overtax the resources of the hobbyists, non-profit corporations and small businesses who run most of these opera- tions. (System operators would of course remain liable for material created by themselves or their employees.) In the short term the chances for this kind of legislation in Canada appear to be remote. Inflammatory articles in the mainstream media about sex, crime and hatred in cyberspace have promoted the belief that the Internet needs more regulation, not greater protection for freedom of expression. Meanwhile system operators can only do their best. Insist on real names and addresses from all your users and a signed user agreement. Review and respond to all complaints promptly. Be prepared to review and delete offensive messages and users who repeatedly post such messages. Get insurance if you can afford it. ----------------------------------------------------------------- Prepared by: Peter Sim Phone (204) 475-5886 (o) Barrister and Solicitor Fax (204) 453-8522 137 Scott Street Winnipeg, Manitoba R3L 0K9 e-mail psim@mbnet.mb.ca Home Page: http://www.mbnet.mb.ca/~psim/index.html DISCLAIMER This article is prepared for general information only. It is not intended to be relied on as legal advice. COPYRIGHT NOTICE Copyright (c) 1995 Peter Sim All rights reserved except the following: Users may make copies in paper or electronic form for distribution, without charge, provided that the article is copied in its entirety and this copyright notice, the above disclaimed and the name and address of the author are included with all such copies. This article orginally appeared in THE COMPUTER POST - Manitoba's Business and Technology Newspaper ----------------------------------------------------------------- -- ________________________________________________________________ Peter Sim Phone (204) 475-5886 (o) Barrister and Solicitor (204) 488-2891 (h) 137 Scott Street Fax (204) 452-8522