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Internet Service Providers Not Liable for Content
biodork writes "
A bout of sanity in the courts. Prodigy is NOT responsible for defamatory material sent over its network. Further, they may not be responsible for the material posted in their bulletin boards." This case has been kicking around since 1994. Finally a real, clear-cut, precedent-setting decision.
It's all fine and dandy now that at least one court realizes that ISP's only act as carriers, and are not responsible for the content transmitted through them. Great, this is nice for us privacy freaks and all that.
But still, from the other point of view, you still haven't really solved the problem. All this proves is that you can't make ISPs trace info so that you can track down abusers. But I'm just wondering, supposing privacy concerns become priority in the future -- meaning no one is legally allowed to monitor our Net activities, store personal info, and strong encryption becomes the norm. This is all great for privacy-aware users like us. But what about people who abuse it? Is there some way to both preserve our privacy, yet not make it impossible to track down abusers when it's necessary? Or will privacy necessarily entail the impossibility of tracking down Net criminals?
Maybe some people think, forget about the abusers, as long as we have our privacy. But this is like saying, forget about robbers, let's just make sure the police have no rights to search our belongings and we'll be happy. Then how would you mete out justice to robbers? This doesn't solve the problem, it only (rather foolishly) ignores it. How about on the Net? Can privacy be preserved yet at the same time it's possible to do something about Net crime?
mikre he sophia he tou Mikrosophou.
The ISP's have to ok the newsgroup so they obviously know by OKing a newgroup with the words pictures and pedophilia or binaries and warez that they will be carrying illegal content. Should they be held liable for such an outright disregard for human decency?
The ISPA (Internet Service Providers Association Belgium) regrets that, according to this ruling, Belgian ISPs are held responsible for the content of webpages of their customers. Unfortunately the article on the ISPA website is not available in English, only in Dutch and French.
Nope. Because /.'s moderation system requires the participation of the readers as well. You can choose not to filter, so the moderation is equivalent to a critic reviewing a movie, not a censor deleting parts of it.
But now that they have common carrier status, they risk losing it if they attempt to regulate what people do with their access.
There are some major differences between the local bullitain boards, and e-mail or web sites that are purely transferred.
If you read the stadard legal disclaimers on the ISP stuff, most bullitain boards claim ownership of anything posted on them.
This may mean that the message is the ISP's legal responisibility, however, it would be nigh impossible to demonstarte intent.
In California Law, auto accidents are considered the fault of the last person who could have avoided them. Similarly, by reserving the right to edit content, even if they do not, the ISP is creating a last failure point for witch it is in some sense liable. Since the ISP is easier to target than some vauge net entity on the other side, and because it is guaranteed to have deeper pockets, the ISP will be sued for it's part of the liabilty before the actual culprint.
I don't necessarily agree with the line of reasoning, but it could certainly be sold to a jury, and probably to some friendly judges as well.
I suppose a similar case could be made with a normal bulletain board, and some offensive note posted on it. In that case, noone sane would think twice about holding the owner of the board responsible, but I wouldn't doubt that an institution could be sued for content of one of its bulletain boards if it was deemed obscene.
I suppose a good way to describe it is that if all communication were strongly encrypted, then the last point of mutability, i.e. the last place where the text was unencryped, and hence editable could be considered a liable point, however, if the info is ecrypted, then obviously the carrier cannot excercise editorial content, and hence cannot be found liable for a lack of it.
Now, if you examine the case of the e-mail the message could have passed from transmitter to reciever without ever being unencryped, but at the bullitain board it must have been plain, in order to be freely distibuted.
Napster was designed to help transmit MP3s. An MP3 file in and of it's self is _not_ illegal. There are several examples of when they are perfectly legal. If the artist explicitly said the MP3s are free, then it's fine. If you have the CD yourself, then it's legal too.
Napster is a way to share those legal files. How could they be doing something illegal? That's akin to saying that the file transfer feature of ICQ is illegal because people can transmit warez across it.
No, these two are not related at all. There is a long history of common carriers being immune to content liability. You cannot go after the telephone company because they accept a phone call to a bookie.
Napster is a different beast altogether. They are benefitting directly by supporting a file format that is widely, perhaps even predominately used for the purpose of copyright infringement. Such a benefit could well be recoverable by the infringed. This is no different from cases in the past where the movie and music industry have sued manufacturers of tape recorders and gotten fees attached to the sale of blank tapes and recorders as a means of recovering their losses.
ALBANY - In its first major ruling on privacy and defamation in cyberspace, the Court of Appeals on Thursday held that an Internet Service Provider (ISP) is merely a conduit for information, as opposed to a publisher, and consequently is no more responsible than a telephone company for defamatory materials transmitted over its lines.
Also:
"We are unwilling to deny Prodigy the common-law qualified privilege accorded to telephone and telegraph companies," Judge Albert M. Rosenblatt
I don't think this will have much (if any) bearing on the case against Demon in the UK - afterall this is a US court case.
I think it will have useful implications where board owners have a disclaimer which clearly states they can edit messages if they are informed of a problem but perform no other checking. IIRC part of the problem with the Demon case was them not removing the messages when somone complained about them. Please note I am not saying the messages in the Demon case were libelous or not, just that part of the problem revolved around lack of action on their part after being informed of the problem.
Kithran
This kind of ruling was something I was expecting for a while. There's been a large rash of blatant privacy violations that have been working their way up the courts. This precedent is a good stepping stone for other privacy violations that are on the ballot...
Methinks the plaintiff took the wrong approach. Suing the imposter for something like wire fraud would seemingly make more sense; or if Prodigy had failed to act by removing the accounts involved upon showing that t'was an imposter, for negligence.
Unless the plaintiff, however, could claim that Prodigy could decide when the accounts were applied for that this was the intent... I would suppose that Prodigy requires addresses and credit card numbers, which should have permitted some cross-checking. At the very least, one person registering several accounts should set off flags, regardless of the contents of messages. When these names match a non-relation, this again should set off more flags, before a single message is posted. Perhaps negligence there...
Only the dead have seen the end of war.
Unlike the internet, though, newspapers have physical control and editing responsibility for what goes into newspapers /they/ print, distribute, and sell. In contrast, nobody owns or is responsible for internet content...it goes when and where it wants upon request. The service ISPs provide is accessibility, not content. It would be like the phone company being liable for conversations held on the phone.
It's 10 PM. Do you know if you're un-American?
The courts just needed to think about it. This was, however, the obvious answer. ISP are just the carriers.
This is how I look at it:
Saying they are responsible is like saying that Ma Bell is responsible for some flame on my answering machine. Um, NO!
-Davidu
# Hack the planet, it's important.
"Given the extraordinarily rapid growth of this technology and its developments, it is plainly unwise to lurch prematurely into emerging issues, given a record that does not at all lend itself to their determination," Judge Rosenblatt wrote for the Court.
Doesn't this make it seem silly to have so many legislators trying to make laws in these areas, when the judges don't even haved a context to stand on? CDA? Millenium Digital Copyright? etc.
The Court held that Prodigy's power to exert editorial control does not alter its passive posture or render it a "publisher" of electronic bulletin board messages.
Yay! Now you can outright delete the shitty posts from the total assholes who insist on posting goddam fucking bullshit cusswords, without being held liable by the bloodsucking law-banging lawyers because you didn't delete that one special post that pushed a suicidal grandma over the edge.
Nice to see a ruling like this, gives me hope for some sane IP/copyright laws in the next century.
+&x
I wonder how this would apply to Slashdot? In Slashdot all of the messages are moderated. So is Slashdot more then just a conduit of information just like a telephone company is? Or are we doing more? While there is no real censorship, messages are never removed, by moderating a message down to -1 it is often not seen by the vast majority of slashdotters. Is this enough to make slashdot a publisher of information?
What about the articals posted on the main page? They are checked before they get posted. Does that mean that Slashdot could be liable?
You bring up an interesting point about liability for moderators. I wonder if it will become necisary to make moderators aware of the fact that *they* could be accused of censoring/obstructing/supressing information when they use the moderation tool?
Is the party that provides the tool (/.) liable or is the user of that tool liable? (there's a parelell to the gun issue here, but that would be pulling this debate offtopic...blah blah blah moderation doesn't kill comments, people kill comments..blah blah blah)
(I can see it now... 50k of text in an 8 point font with an I AGREE button down at the bottom just to moderate 5 articles)
It looks as though this case could be used in an argument against UNISYS's idea of "contributory infringement" of their LZW-compression patent.
UNISYS wants to hold web-site operators responsible for GIFs that appear on their site (search for "LZW" to see previous discussions here, or visit www.burnallgifs.org).
This case might apply when the only GIFs on a site are those that are passed through by an ad broker, leaving the ad broker and not the site operator responsible for paying the GIF tax, which is the way I think it ought to be.
*clap* *clap*
It seems that finally a Judge believes in Personal Responsibility.
If *YOU* don't like a site or find something offensive, then sue the human who MADE the post/site. If you can't get modivated enough to sue, then stop whining.
If it was said on slashdot, it MUST be true!
...Describing e-mail as "the day's evolutionary hybrid of traditional telephone line communications and regular postal service mail,"
Yeah, ok, it's an Appeals court, a state one. But apparently, in New York, the court is prepared to view email as similar enough to postal mail to get some of the same legal protections. Tampering with postal mail goes into federal jurisdiction, and carries some fines, maybe jailtime. Are they prepared to give those protections to email as well? Privacy may have just received a small boost.
Communication is only possible between equals
When you --the reader-- create an account at /. you are given an option to be a moderator. This makes it possible for a reader, moderator, and poster to be the same individual. Moderators are volunteers (aka. the public), NOT EMPLOYEES OF SLASHDOT.
Bearing this in mind, your "expert legal opinion" give me the creeps (and is grieviously flawed). Good thing it was free. I would hate to have paid money for it.
As far as your anonynimity is concerned, I could care less. In this particular case it costs you a great deal of credibility.
Sorry, but that is how I feel.
The trouble is that governments don't want the Internet to be judged by the same rules as telephone and mail.
They view it as a threat to internal security because it promotes true democracy. So they will introduce legislation so that Judges don't have to think about common law rights and precedent.
If you don't believe me, come to Australia. People elsewhere think our government is backward because of some recent policies - wrong - they are way ahead of the game.
The Aus government has already figured out that the way to curb unbridled democracy is to have ISPs running scared over draconian content laws and then to have a politically controlled internal security organisation (read secret police) legally authorized to hack into said ISPs (or any one else) and to change data on their computers.
Note that ASIO (the security org) is not answerable to a judge to get a warrant but to a political master. So if an someone hosts unsavoury political commentry that the government sees as a threat to national security (ie it threatens the government of the day or some political or economice interest) they can legally compromise the providers computers.
Hardly likely. All moderators are doing is entering an opinion of the article. You can choose to ignore their opinion if you desire, by setting your filtering level appropriately. Opinions are not censorship.
...phil
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
You bring up a very good point behind to many lawsuits today. Moreover, I think there is an even larger sociological force at work here. People that always view differences with strong duality and think of differences of opinion as solved via 'confrontation'. There is a serious lack of respect for skills that bring people together, skills that foster a solution, appreciation for the beauty of a ompromise.
--
Dave Aiello
-- Dave Aiello
I guess one of the reasons that this has come up with respect to those sites is that losses are sometimes more immediate and quantifyable.
--
Dave Aiello
-- Dave Aiello
As I said in another reply, I like you, don't know how much illegal stuff is in there and don't really want to look and see, but I just think a *sign* like that is worth looking into. Kinda like if I were to open a store with the name "John's Big 'Ole House a' Marijuana" I wouldn't be offended if cops came in everday with a search warrant.
So in order to determine whether the material is indeed objectionable, they'd have to check, and possibly violate the law by posessing (for however a short time) child pornography. Ugly situation for the censors to be in
Well I would agree that censors might not want to look at that kind of stuff, I can imagine the kind of bitterness for the world you could develop if it was your job to look at little kids getting abused all day, but as far as them possessing it, isn't it already on the ISP's servers?
This is a fair ruling.
Are owners of shopping malls held responsible if people perform illegal activities within them?
This is a topic that the current generation will debate forever, until computers are integrated so tightly into our society that it is no longer an issue.
The issue here, and also in a lot of other stories that appear here, is that of whether real-life ethics and laws should apply to this "electronic world" that has been created following the rapid spread of networks, in particular, the Internet.
This Prodigy ruling, as well as many others in the same vein as it, will continue to happen.
Scott182
I thought this suit was pretty tacky - when the forged email and postings were brought to Prodigy's attention, they did a good job of responding quickly and deleting them. It was clearly not their negligence, and especially after cases like Cubby vs. Compuserve, which also found the ISP not liable, this was a good solid decision by the judge.
:-)
While the US courts did the right thing in this case (yay!), one implication of the Internet going everywhere on the planet is that almost anything you post can upset someone, somewhere, in a jurisdiction you'd rather not travel to for a trial. One famous case involved an Australian saying bad things about a Brit, who sued for defamation in a British court and won against the respondent, who mailed in a response but didn't show in person for a defense. British libel laws seem biased toward the plaintiff, at least compared to US laws, and many jurisdictions without strong traditions of press freedom will also rule against ISPs (at least unless the ISP has a deal with the local telco monopoly.)
Some countries care about defaming their citizens, at least prominent citizens. Some governments ban defaming the government or government officials ("The King is a fink!"). Some governments ban propagating unapproved religions (non-Islam in many Islamic countries, Scientology in Germany, Fulan Gong in China, Jehovah's Witnesses almost everywhere, lots of things in Singapore.) Some governments ban pictures of women without veils on their faces - your web site could cause you big trouble in Afghanistan, next time you're there. Some governments don't like capitalist activities unless you pay them a
Fortunately, most governments don't care about libel against non-citizens, and most governments don't enforce court judgements against their citizens by other governments for things that aren't illegal at home. But states in the US are pretty cooperative with each other - a New York court may very well hear a defamation suit against a Californian who doesn't want to take the time and money to show up.
On the other hand, you can avoid much of this problem by using internet privacy technologies,
like freedom.net, which make it more trouble to track you down and sue you than to respond appropriately, e.g. by flaming back at you on the Internet, or setting up a web page explaining why you're an lying loser and scribbling your pages using Third Voice, or by ignoring you if that's a better approach.
Oh, by the way, all those stupid things allegedly posted by billstewart, that wasn't me, that was somebody else
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
I believe that a very strong argument could be made for 'suppressed' information if the default setting on the 'Threshhold' was 0 or higher.
What do you mean "if the default setting...was 0 or higher"? The default threshold is 0.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Indeed. It's much better that they take a long time getting around to the issue than that they make a mistake early, since once they've ruled on something the first time they've set a precedent! Once a precedent is set, correcting the error becomes more difficult. Better they take their time and make the right decision the first time around. I'm not sure if they would have made this same decision 5 years ago when ISPs weren't a dime a dozen. Not understanding the revolution that was coming, they may have insisted ISPs take editorial control over what "they publish" or some such nonsense.
--
"Convictions are more dangerous enemies of truth than lies."
I'd guess that the past editing would only create a problem if one of those past posts in the archives were deemed to be illegal. Since slashdot currently does not edit the contents of its posts, it probably isn't liable for them. Of course, you never know...
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Maybe we should have a law that all print shops must ID all their customers and maintain a register containing the customer's identity and a sample of the item printed. Next, we can mandate the registration of all typewriters and photocopy machines with the government.
Mea navis aericumbens anguillis abundat
Still, it makes some situations unassailable by the legal process. I'm thinking of cases with gigabucks to tie up courts while technological changes render the matter moot.
It's a good thing there's no censorship here.
Once you "edit" comments, you take over liability for the content of that article. /. the same as editing content?
Is the moderatrion system currently in use here on slashdot
Do Moderators have "Editoral Control"?
From the article:
Describing e-mail as "the day's evolutionary hybrid of traditional telephone line communications and regular postal service mail," the Court noted that while commercial on-line services like Prodigy transmit electronic mail, they do not exercise any editorial control. It evaluated Mr. Lunney's claim in the context of existing tort precedents, and found that "these settled doctrines accommodate the technology comfortably."
I am not sure about the outcome of the case. Altern was down for quite a while, but is now back up. You now must provide an email address (that is confirmed) to open an account. There was a petition, and as the case was posted on Slashdot, quite a few people signed it. I do remember the ISP owner (it's a one-person operation, on a Linux server BTW) thanking everyone for the support.
However, how much effect does this have for those unfortunate ISPS in the UK? (J/K) I haven't kept track, but The-ISP-I-Can't-Remember-the-Name-of that removed an article from its news spool for being libellous is still fighting its appeal IIRC, is there a precedent for using an example from an American court in British ones? I don't think so, but who knows IANAM.
This has some very good implications, although as far as I can see this only really applies to Boards where the owners merely reserve the right to edit and email, only a brain dead judge wouldn't apply this to usenet.
However, does this apply to webpages? I tend to think the ISP's would be free from liability for evil things on a page, but I don't see that spelled out in this ruling.
"Tax preparation software eliminates errors your[SIC] may make...." From IRS home page.
Napster is currently named in a law suit filed by the RIAA in regards to illegal MP3 distribution. Perhaps this case can be overturned with the help of this new ruling? Of course, Napster isn't a common carrier, but it isn't providing the information, either. It is only providing a means for people to exchange information ... just like ISPs.
In the last half of 1998, We had a similar case. Here is an extract that is available on the IIA (Internet Industry Association)
In summary, the Australian Performing Rights Association took OzEmail to court because OzEmail refused to pay for a license fee to APRA, at the rate of $1 per subscriber per annum, for allowing the downloading of music over the Internet. APRA represents the interest of artists and is responsible for the collection and distribution of royalties to them for 'performances' of their works. They hold that an ISP is allowing the transmission of a work and therefore should pay a license fee for such.
This case was settled out of court with Ozemail not accepting liability. Here is the settlement.
APRA agreed to cease the action in the Federal Court on the following terms:
A payment by OzEmail on behalf of the industry to be made on 30 June 1998. Each party agreed to meet their own costs
There was no admission of liability by OzEmail Limited
APRA would not sue any other ISP in Australia, which joins in the settlement agreement.
OzEmail, the Internet Industry Association and APRA would work together to advise the government on the appropriate form of new legislation covering their copyright which recognises that those who make available content through the Internet are responsible for the copyright liability of any material they make available. The parties agree that it be clearly enshrined in the legislation that ISPs are not liable for material they host or which passes through their services.
OzEmail makes available on a regular basis information regarding the hosting of sound files, which may assist APRA, with due regard to the privacy of customers and obligations under the IIA Code and the Telecommunications Act. OzEmail will use their best endeavours to have other IIA members provide information to assist APRA in protecting the intellectual property of their members.
OzEmail's terms and conditions reflect the responsibility of content providers to ensure they do not make available material for which they do not have authorisation from the copyright holder.
Should no legislation be enacted by 30 June 1999 the parties agree to renegotiate in good faith
The full offer to Australian ISP's is at http://www.iia.net.au/news/apra.html
The MyTh - I am a figment of the Imagination - [Im Probably even not here]
This was a decision local to New York, not a binding precedent on the rest of the country. Until we see a Supreme Court decision about this, there will be no case law binding on the entire US, just on the particular district in which the decision was made.
Granted, New York has a sizable chunk of people. But it won't affect the rest of us for now.
You're missing the point of the lawsuit. The defendant wanted lots and lots of money. The imposter (who is not named in the article, and perhaps is still unknown) doesn't have lots and lots of money. Prodigy does. It would make more sense to sue the person who was responsible if your aim in filing suit was retributive, or even preventative (see my earlier comments in a different story on punitive, preventative, and rehabilatative punishments), but clearly, the plaintiff just thought this would be a good way to make a shitload of money.
In case you hadn't noticed, that's the motivation behind a lot of tort suits, and it's one of the reasons that the court system is overflowing with them.
* mild mannered physics grad student by day *
* mild mannered physics grad student by day *
* daring code hacker by night *
http://www.silent-tristero.com
Just think about if the telco was screening all phone calls to make sure that "bad" content wasn't on their network. There would be a loss of privacy. Plus I guess the phone bill would have to go up considerably to conver the cost of all that monitoring (just as if an ISP had to hire staff to monitor content on their servers).
I'm glad the courts ruled the way they did in this case.
-Michael [Remove two parts of address to mail me]
According to the article; "Mr. Lunney, through his father, sued Prodigy contending that the company negligently allowed accounts to be opened in his name. He sought damages for defamation and intentional infliction of emotional distress. " Now, should it be perfectly legal to *impersonate* someone online? This Lunney dude had the right to contend against Prodigy opening the accounts in his name. Yes, ISPs are only carriers, but they should implement stronger checks to prevent this kind of harrasment. IMHO, ISPs should be held liable for something such as a web site containing illegal content. They should also be liable for impersonation/fraud, which is what happened here. They should *not* be liable for the content of message boards, email, and other such temporary content or public forums, which is also what happened. Yadda, yadda.