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Lesson 37 - Libel 6:

Libel Online III

Imagine Dr. Evans (from our last message) moves over to a different online service provider. This online service provider promises to screen all messages before they are posted on an online bulletin board. Dr. Evans chooses this over the other online service provider, since she is less likely to be flamed on this service than the other.

The new service provider does what it promised; it screens all messages before they are posted. A gaggle of editors sits at computer screens reading every message; any questionable message gets routed to a fact checking team that determines whether it is too questionable to publish or not. Questionable posts are dumped; indecent posts are dumped. This online service provider becomes known as the Disney World of online services.

And then IBEX returns. Again, IBEX posts a similar message: "Dr. Evans is not a medical doctor; she is a veterinarian. She has fraudulently been practicing medicine for 5 years, pretending to be a medical doctor when she is not. She is a LIAR and a FRAUD."

The message is sent to be posted. A tired, and bored, editor, reads it, but doesn't understand the significance of what he has read. He allows the message to be posted. Evans is shocked; very quickly, the service provider pulls the message, but not before 1,000 people have read it. IBEX has once again disappeared. What can Dr. Evans do now?

Well, this case is a bit different from the case in message 5. In this case, the online service provider is acting more like a traditional publisher. It is screening the stories that it posts; it promised that it would. And while this might be a difficult task to do, or do well, no one forced it to do it. The service chose to be the Disney World of online services. Now, the argument goes, the online service provider must pay. This was the reasoning that led a court recently to a different conclusion from the one in Cubby. In a case called Stratton Oakmont, the court ruled that Prodigy would be treated as a newspaper, since the court believed it had exercised editorial control over the content of the messages posted. Both through automatic screening, and some manual screening, Prodigy (the court thought) had become something different from CompuServe.

Many thought the Stratton Oakmont case a radical departure from the Cubby decision, and many have criticized the decision quite forcefully. Technically, however, (and lawyers love the technical), it was a much more limited decision. The court was not holding that Prodigy was responsible for every false fact published on their service. Prodigy had represented (or so the court found) that it would remove offensive and uncivil comments, whether true or not, and this was what they had failed to do. It was only because of it undertook to do this that the court considered Prodigy more like a publisher than a book store.

The authority of the Stratton Oakmont case has been made questionable by the recent Communications Decency Act of 1996. The famous part of that statute is the part that attempts to limit indecency online. But in a little- discussed portion of the statute, it says that service providers will not be considered "publishers" of material that they did not write. That seems to say that the Cubby decision is the law, and that Stratton Oakmont is not. But this is an area of some doubt. Stay tuned!


authors:
Larry LessigDavid PostEugene Volokh



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