Main Index : Writings of Marie A. D'Amico, Esq.

Courting Content Liability

Marie D'Amico July 1996

Courting Content Liability

Creating content or supplying services for the World Wide Web can be a worrisome road. Recent court cases and controversial legislation have hinted at huge potential liabilities for three major areas - electronic defamation, copyright infringement, and obscenity. The courts have only considered a fistful of these cases, resulting in an incredible paucity of legal precedent. Whether you are placing a personal page, a small storefront, or Wal-Mart online, you can take some simple steps which should assist your defense should trouble find you online.

If you have editorial control over your electronic content, you can be classified a publisher and can be liable for defamatory statements on your Web site or service . If you possess no control over your content, you can be classified a distributor and should be liable only if you knew or should have known a statement on your site or service was defamatory. A federal court in New York in 1991 decided CompuServe was a distributor not liable for defamatory messages on one of its bulletin board services (BBSs). A state court in New York in 1995, however, ruled Prodigy was a publisher potentially liable for defamatory statements on its Money Talk BBS. Conflicting? No. In the Prodigy lawsuit, the court ruled CompuServe and BBSs should be designated distributors, akin to bookstores and libraries. The court found, however, that Prodigy's own content-control policies had pushed it into the publisher category. The parties settled the case but the court's comments remain relevant.

So, if you're a Web provider, should you scan all statements sent to your site or service? Unless you possess a legion of lawyers or no professional or personal life, you don't have time for this. I propose you place a written disclaimer refuting the evidence the judge wielded against Prodigy . This disclaimer should say you are an electronic distributor with no editorial or content control, no software screening ability, no methods or policies preventing posting of defamatory or inappropriate messages, and messages not authored by you don't reflect your views. In addition, stay tuned to future cases for subsequent safeguards.

Contrary to defamation, you can be liable for copyright infringement, which is a crime, even if you have no knowledge of or intent to infringe. Both Playboy and Sega have successfully sued BBSs for copyright infringement. Careful critique of both cases demonstrates the defendants weren't so sinless; the courts found each knew or participated in the online, illicit profit-making. CompuServe recently settled a class action copyright lawsuit brought by major music publishers who alleged a CompuServe BBS permitted paying subscribers to illegally upload, store, and then download copyrighted songs. While CompuServe may have been blameless, it was forced to fork over $568,000 and future royalties for each song downloaded to avoid costly litigation.

How can you fortify yourself against this guiltless, but all-too-ordinary offense? Luckily, there are a discrete number of formats for the most popularly pilfered products. You can scan the section of your Web site or service where material is uploaded or downloaded for these file formats. If you create Web content, limit the individuals who have permission to upload files to the site. If you come across copyrighted material, remove it immediately. Review the 10 common myths about copyright at if you're uncertain about the copyright status of a specific work.

On February 8th, 1996, President Clinton penned the 1996 Telecommunications Act into law which attempts to achieve widespread telecommunications reforms. The American Civil Liberties Union and a gaggle of other pro-privacy groups have challenged the constitutionality of the Communications Decency Act (CDA) portion of this law. A federal judge in Philadelphia then issued a restraining order against the CDA and a three-judge panel soon will determine if, and to what extent, the CDA is constitutional. The United States Department of Justice (DOJ) has agreed not to initiate investigations or prosecute anyone under certain censorship provisions of the CDA until the judges complete the case. Other bills concerning communications and privacy also are traveling through the House and Senate.

The CDA seeks to punish not only obscene material but also lewd, lascivious, filthy, or indecent messages sent over the Internet. The CDA also prohibits the transmission of obscene messages or messages concerning sexual or excretory activities or organs to minors (anyone under 18). While you're agitatingly awaiting the panel of judges, what can you do? The CDA provides a defense to anyone who, in good faith, takes appropriate actions to prevent access by CDA to prohibited communications. Review the current crop of cybermonitoring products and services. Buy one and use it. The CDA also suggests you use a verified credit card to restrict children from access to adult materials. Remember, any kid smart enough to use a modem can certainly fake a driver's license. We will keep you updated on CDA developments.

Meanwhile, be careful out there.

Questions? Send me email .