The worldwide web, that vast library with millions of readily available and indexed publications, as well as a sprawling mall of goods and services is not only changing the way we do business, it is also facing changes in our laws. As technology evolves and the worldwide web becomes a common forum for mass wide-spread communication, the law tries to keep up. Many legal issues, specifically those surrounding the issues of defamation, libel and indecent or obscene material, have yet to be adequately resolved.
Libel is generally any untrue, written or printed publication which tends to blacken a person's reputation or expose that person to public hatred, contempt, ridicule, or injures the person in his/her business or profession. There is a distinction between a person posting a message, saying he is dissatisfied with a service provided by a company and, in contrast, broadcasting a malicious and untrue statement about the company. The latter could subject an individual to liability for libel.
In addition to individuals being subject to liability for messages broadcast over the "web," third parties such as service providers can be subject to liability under two separate theories. First, the theory of publisher liability which provides that an entity, such as a newspaper, can be subject to liability for any libelous material that it publishes. On the other hand, the theory of distributor liability provides that an entity, such as a news vendor, book store or library, will only be subject to liability if the entity knew or had reason to know of the libel.
In recent years, courts have been divided on whether on-line service providers are considered distributors or are held to the higher standard applied to publishers. The District Court for the Southern District of New York, in a 1991 decision, found CompuServe Inc. to be more like a distributor because it had little or no editorial control over the bulletin board's context, since the publication was managed by a company unrelated to CompuServe. The Court also stated that computerized databases are the functional equivalent of a news-vendor or a "computerized library." Applying the theory of distributor liability, CompuServe could not be subjected to liability because it neither knew nor had reason to know of the allegedly libelous remarks.
Conversely, in a 1995 decision, the Supreme Court of New York found Prodigy, another on-line service provider, to be considered a publisher because it exercised editorial control over the content of messages posted on its computer bulletin boards. The Court held that Prodigy could be held liable for libelous statements made by an anonymous party which were posted on "Money Talk," a financial bulletin board provided by Prodigy. In its decision, the Court noted that computer bulletin boards should generally be regarded as distributors in the same context as bookstores, libraries and network affiliates.
Given the recent court decisions, Congress has become concerned that on-line service providers would not edit the content of the material they published for fear that these on-line providers would subject themselves to liability for defamation as publishers. In order to address this issue, as well as other issues dealing with the web, Congress enacted the Communications Decency Act of 1996 (the "CDA"). Section 230(c)(1) of the CDA, known as the "Good Samaritan Provision," provides, in part, that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
The "Good Samaritan Provision" has recently been tested in a 1997 case concerning America Online, Inc. ("AOL"). There, an unknown person, acting without the plaintiff's knowledge or consent, affixed the plaintiff's name and telephone number to a series of notices on AOL's electronic bulletin board advertising t-shirts and other items with horrific slogans glorifying the bombing of the federal building in Oklahoma City. AOL was sued because they failed to remove the defamatory material despite having received a notice and complaints from the plaintiff following the first advertisement. The District Court for the Eastern District of Virginia found that the plaintiff's attempt to impose distributor liability on AOL was, in effect, an attempt to have the service provider treated as a publisher of defamatory material. The Court held that, according to the "Good Samaritan Provision," AOL, as an on-line service provider, could not be held liable for libelous statements made by a user of their service.
Although Section 230 of the CDA has survived judicial scrutiny, other sections, attempting to regulate indecent or obscene material transmitted over the web, have come under attack. Section 223(a) prohibits, in part, the knowing transmission of obscene or indecent messages to any recipient under the age of eighteen. The U.S. Supreme Court, in a case decided in June of 1997, affirmed a decision holding this provision of the CDA unconstitutional finding the language of the law overly broad and not tailored to protect a compelling governmental interest. The Court recognized the governmental interest in protecting children from harmful materials but held that this interest did not justify a broad suppression of speech to adults, given that the Court has previously held that sexual expression which is indecent but not obscene is protected by the First Amendment. In so holding, the Court opined that the content on the web is as diverse as human thought itself. It is clear from the amount of court cases, as well as legislation, that our legal system is struggling with how to apply the law to this new technology. the courts are attempting to place boundaries on what is and is not permitted on a technology that at present, has no boundaries.