Imagine that Dr. Evans is hosting an online chat discussion about cancer. Someone named IBEX enters the room, and says, "Dr. Evans is not a medical doctor. She is a veterinarian. She knows nothing at all about human cancer, yet she continues to practice medicine without any qualification. She is a fraud." IBEX then leaves. What then?
Well, lets assume first that everything IBEX said about Dr. Evans was false. IBEX has defamed Dr. Evans, and Dr. Evans has a right to sue IBEX. (How much she could recover depends upon how many people read what IBEX said, and whether Dr. Evans could effectively prove IBEX was lying. That's a different question, though, from whether she can sue.)
But who is IBEX? Imagine Dr. Evans contacts the online service provider about the defamation, and they then track down the person who owns the account that IBEX was logged onto. That person, however, turns out to have been in Vietnam for the summer, and certainly could not have been IBEX. The real IBEX is gone, off to do harm somewhere else another day.
Is Dr. Evans then stuck? Is there no one she can sue? Well, what about the online service provider? Even though IBEX wrote the libel, the service provider technically "published" the words that defamed Dr. Evans. Shouldn't the online publisher, like a newspaper, be responsible for the damage its publications do?
The law of libel was written in the world of newspapers. Newspapers publish stories that expose them to defamation liability. These stories are typically written by newspaper employees (reporters), but this liability exists even for letters to the editor, or paid advertisement. There are editors who read through everything before anything is published. The newspaper therefore exercises, or can exercise, some control over what it publishes, and because it exercises control, it makes some sense to hold it liable. What about an online service provider, like CompuServe or AOL? They resemble newspapers, in that they, too, "publish" stories. Some of these stories have been written by CompuServe or AOL. But most of them have not. Most of them have been written by users of the system, and posted to the system without any intervention by the service provider at all. Should the service provider still be considered a publisher and thereby be subject to liability for libel like a newspaper?
The question is complicated, and technology is not making it any easier. Here's another example: Imagine someone phoned up Larry King Live, and falsely said on national television that the local butcher was a crook. Is Larry King liable for publishing a libel? (Note that it is a question whether this is a libel or a slander, but we=92ll assume it is a libel).
The answer here has got to be no. Larry King had no control over what the caller said, and there would be no way to screen what the caller said to make sure it was not defamatory. (Remember: if the story were true, it would not be defamatory.) So Larry King is not liable as a publisher of this falsely defamatory fact.
At least the first time: What about a rerun? Imagine Larry King reruns the same show, after learning that what the caller said was falsely defamatory. In this case, Larry King could be liable.
The same idea may be behind much of the debate about whether an online service provider is liable for libel. For when something is first posted, this for the most part, is like the caller on Larry King. There is little the service provider could do to avoid the first posting. But if, after the service provider learns about the defamation, it still does nothing, then the provider is likely to be liable itself. Even if it couldn't avoid the original publication, the later publications it could do something about.
This was the decision of a famous case in cyber-lore, Cubby v. CompuServe. So long as CompuServe doesn't know, or doesn't have reason to know, about the libel, Compuserve, the court held, cannot be liable. CompuServe would be treated more like a bookstore than a publisher - liable if it knows of an offending work, but not if it doesn't.
Following the Cubby case, then, our Dr. Evans could not sue the online service provider. If she can't sue IBEX, then she is stuck. Her only remedy is to try to prove to people that what IBEX said was false.
But Cubby wasn't the last word on this subject. In our next message, we discuss a case that reached a different conclusion.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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