Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
these rights.I. ISP LIABILITY FOR THIRD-PARTY ACTS OF DEFAMATIONAt common law one who “repeats” the statements of anotheris just as responsible for their defamatory content as the originalspeaker.25 Thus, the publisher of a defamatory statement isequally liable to the defamed party as is the person originallymaking the statement. However, newsvendors, bookstores,libraries, and other vendors and distributors of defamatorypublications are not liable if they did not know or have reason toknow of the defamation.26 Freedom of speech and the pressprevent the government from imposing strict liability ondistributors for the content of materials they carry.27 Therefore,in the quest to avoid liability for the content placed on theInternet by third-party subscribers, it is advantageous under acommon law regime for an ISP to be characterized as a distributorrather than a publisher of an allegedly defamatory statement.A. ISP Liability for Third-Party User Defamation Before the CDAThe first time that the question of liability for an ISP arose inan American defamation case was in Cubby, Inc. v. CompuServe,Inc.28 In this case, CompuServe, an Internet service provider,operated a bulletin board that contained a daily newsletterpublication catering to the journalistic community entitled“Rumorville.”29 Cubby, Inc. began a competing electronicpublication entitled “Skuttlebut.”30 Following the publication ofSkuttlebut, the Rumorville newsletter published statementsclaiming Skuttlebut was publishing information that it obtainedthrough a “back door” that had first been published by Rumorville,that its principal had been “bounced” from his prior job, andcharacterizing Skuttlebut as a “start-up scam.”31 Cubby thensued CompuServe as the publisher of these defamatorystatements.25. See Cinanci v. New Times Pub. Co., 639 F.2d 54, 60-61 (2d Cir. 1980).26. See Lerman v. Chuckleberry Publ’g, Inc., 521 F. Supp. 228 (S.D.N.Y. 1981).27. See Smith v. California, 361 U.S. 147, 152-53 (1959).28. See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991).29. See id. at 135.30. See id.31. See id.
The court held that CompuServe acted as a distributor of theRumorville newsletter rather than its publisher.32 This holdingwas based on the court’s finding that CompuServe did not exerciseeditorial control over the Journalism Forum bulletin board, butrather had contracted with an independent company, CameronCommunications, Inc., to “manage, review, create, delete, edit andotherwise control [its] contents” in accordance with the editorialand technical standards of CompuServe.33 Further, the courtfound that Rumorville was published by Don FitzpatrickAssociates, who accepted total responsibility for its contents.34CompuServe’s only activity in managing the bulletin board wasrequiring Cameron Communications to limit access to Rumorvilleto those CompuServe subscribers having a membershiparrangement with Don Fitzpatrick.35 Since CompuServe had “noopportunity to review” the content of the newsletter before it wasuploaded and made available to subscribers, the court found thatCompuServe exercised no more editorial control over Rumorville“than does a public library, bookstore or newsstand” over materialit makes available to the public.36 The court went on to hold thatthe proper standard of liability to be applied to CompuServe inthis case was whether it, as a distributor of Rumorville, “knew orhad reason to know of the allegedly defamatory Rumorvillestatements.”37 Since Cubby offered no evidence that CompuServeknew or had reason to know of the statements at issue, the courtrefused to hold CompuServe liable for their content.38Cubby’s holding was not followed by a later case, StrattonOakmont, Inc. v. Prodigy Services Co.39 In this case, ananonymous user of Prodigy’s “Money Talk” bulletin board postedstatements claiming that Stratton Oakmont, a securitiesinvestment banking firm, and Daniel Porush, Stratton’s president,committed criminal and fraudulent acts and was a “cult of brokerswho either lie for a living or get fired.”40 Unlike, the decision in32. See id. at 140.33. Id.34. See Cubby, 776 F. Supp. at 137.35. See id.36. Id.37. Id. at 140-41.38. See id. at 141.39. See Stratton Oakmont, Inc. v. Prodigy Servs., Co., 1995 WL 323710 at *1 (N.Y.Sup. Ct. May 24, 1995).40. Id.
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these rights.I. ISP LIABILITY FOR THIRD-PARTY ACTS OF DEFAMATIONAt common law one who “repeats” the statements <strong>of</strong> anotheris just as responsible for their defamatory content as the originalspeaker.25 Thus, the publisher <strong>of</strong> a defamatory statement isequally liable to the defamed party as is the person originallymaking the statement. However, newsvendors, bookstores,libraries, and other vendors and distributors <strong>of</strong> defamatorypublications are not liable if they did not know or have reason toknow <strong>of</strong> the defamation.26 Freedom <strong>of</strong> speech and the pressprevent the government from imposing strict liability ondistributors for the content <strong>of</strong> materials they carry.27 Therefore,in the quest to avoid liability for the content placed on theInternet by third-party subscribers, it is advantageous under acommon law regime for an ISP to be characterized as a distributorrather than a publisher <strong>of</strong> an allegedly defamatory statement.A. ISP Liability for Third-Party User Defamation Before the CDAThe first time that the question <strong>of</strong> liability for an ISP arose inan American defamation case was in Cubby, Inc. v. CompuServe,Inc.28 In this case, CompuServe, an Internet service provider,operated a bulletin board that contained a daily newsletterpublication catering to the journalistic community entitled“Rumorville.”29 Cubby, Inc. began a competing electronicpublication entitled “Skuttlebut.”30 Following the publication <strong>of</strong>Skuttlebut, the Rumorville newsletter published statementsclaiming Skuttlebut was publishing information that it obtainedthrough a “back door” that had first been published by Rumorville,that its principal had been “bounced” from his prior job, andcharacterizing Skuttlebut as a “start-up scam.”31 Cubby thensued CompuServe as the publisher <strong>of</strong> these defamatorystatements.25. See Cinanci v. New Times Pub. Co., 639 F.2d 54, 60-61 (2d Cir. 1980).26. See Lerman v. Chuckleberry Publ’g, Inc., 521 F. Supp. 228 (S.D.N.Y. 1981).27. See Smith v. California, 361 U.S. 147, 152-53 (1959).28. See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991).29. See id. at 135.30. See id.31. See id.
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