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
Cubby, the court in Stratton Oakmont held that Prodigy could beheld liable for libel as if it were a newspaper or broadcasterbecause it reserved the right to exercise editorial control over itselectronic bulletin boards.41 The court reasoned that Prodigy helditself out to the public as an ISP exercising editorial control overits bulletin board postings.42 Prodigy employed both an automaticscreening software program and volunteer bulletin board leadersto supervise the content of board submissions.43 The StrattonOakmont court likened these features to the editorial controlexercised by a newspaper, and held that Prodigy was a publisherof the defamatory statements at issue, even though the ISP had noknowledge of these statements.44The court in Stratton Oakmont distinguished the Cubbydecision by describing the different roles performed byCompuServe and Prodigy, the two ISPs and bulletin boardoperators in question. The court acknowledged that a meredistributor, such as a bookstore or library, may be liable for adefamatory statement made by a third party only if it knew or hadreason to know of the defamatory statement at issue.45 Adistributor, such as CompuServe in Cubby, acts as a passiveconduit and will not be found liable for libel in absence of fault. 46The court reasoned that Prodigy was not such a passive conduitbecause it exercised editorial control over its bulletin boardpostings equivalent to that of a newspaper editor.47 By exercisingthis editorial control, the court found that Prodigy exposed itself togreater liability than other computer networks choosing not tomonitor the content of their system.48B. Congressional Reaction to Stratton Oakmont v. ProdigyServices Co.: The CDAIn response to the decision in Stratton Oakmont, Congresspassed Section 230 of the Consumer Decency Act of 1996.49 In41. See id. at *5.42. See id. at *2.43. See id. at *4.44. See Stratton Oakmont, 1995 WL 323710 at *3.45. See id. at *3.46. See id.47. See id.48. See id. at *5.49. 47 U.S.C. § 230 (1996).
this section, Congress provided that online service providers andweb site owners be regarded as distributors rather thanpublishers of third-party content posted on their systems.50Congress adopted this section with the intention of removing theheightened liability Stratton Oakmont placed on ISPs who chooseto monitor the content posted on their systems that was generatedby other, third-party providers.51 Section 230 also limits theliability of an online provider for any action taken voluntarily bythe ISP in “good faith” to restrict access to material “that theprovider or user considers to be obscene, lewd, lascivious, filthy,excessively violent, harassing, or otherwise objectionable, whetheror not such material is constitutionally protected.”52 Theseprovisions were enacted to facilitate Congress’ larger goal of“removing disincentives for the development and utilization ofblocking and filtering technologies” which allow parents to“restrict their children’s access to objectionable or inappropriateonline material.”53Although portions of the CDA prohibiting the transmission of“obscene or indecent” communications were held unconstitutionalby the Supreme Court in Reno v. American Civil LibertiesUnion,54 the provisions limiting ISP liability for third-partycontent remain viable.55 While the language of Section 230clearly limits the liability ISPs face as publishers of third-partycontent, it does not directly address the remaining liability thatISPs could potentially incur as distributors of third-partydefamation when the required knowledge standard is proven incourt.56 However, in applying the CDA to online defamationcases, the courts have declined to draw a distinction betweendistributors and publishers in a way that would give rise to ISP50. 47 U.S.C § 230(c)(1) provides: “No provider or user of an interactive computerservice shall be treated as the publisher or speaker of any information provided byanother information content provider.”51. See Joint Explanatory Statement of the Congressional Conference Committee,H.R. Conf. Rep. No. 104-458 (1996), reprinted in 1996 U.S.C.C.A.N. 124.52. 47 U.S.C. § 230(c)(2)(A) (1996).53. 47 U.S.C. § 230(b)(4) (1996).54. 521 U.S. 844 (1997).55. See id; see also Goldstein, supra note 3, 617-21 (discussing the limitations ofthe Reno case on the CDA and the continuing viability of Section 230 as it limits thecontent liability of ISPs).56. See Joseph P. Zammit & Felicia Gross, Web Site Liability: Risks and Costs ofCompliance, 4 P.L.I. Ann. Internet L. Inst., Course Handbook Series, available at 611PLI/Pat 815, 895 (2000).
- Page 182 and 183: the debate has centered on whether
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- Page 216 and 217: law is a complex one.125 Although s
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- Page 220 and 221: Other Substantive IssuesThere are,
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- Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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Cubby, the court in Stratton Oakmont held that Prodigy could beheld liable for libel as if it were a newspaper or broadcasterbecause it reserved the right to exercise editorial control over itselectronic bulletin boards.41 The court reasoned that Prodigy helditself out to the public as an ISP exercising editorial control overits bulletin board postings.42 Prodigy employed both an automaticscreening s<strong>of</strong>tware program and volunteer bulletin board leadersto supervise the content <strong>of</strong> board submissions.43 The StrattonOakmont court likened these features to the editorial controlexercised by a newspaper, and held that Prodigy was a publisher<strong>of</strong> the defamatory statements at issue, even though the ISP had noknowledge <strong>of</strong> these statements.44The court in Stratton Oakmont distinguished the Cubbydecision by describing the different roles performed byCompuServe and Prodigy, the two ISPs and bulletin boardoperators in question. The court acknowledged that a meredistributor, such as a bookstore or library, may be liable for adefamatory statement made by a third party only if it knew or hadreason to know <strong>of</strong> the defamatory statement at issue.45 Adistributor, such as CompuServe in Cubby, acts as a passiveconduit and will not be found liable for libel in absence <strong>of</strong> fault. 46The court reasoned that Prodigy was not such a passive conduitbecause it exercised editorial control over its bulletin boardpostings equivalent to that <strong>of</strong> a newspaper editor.47 By exercisingthis editorial control, the court found that Prodigy exposed itself togreater liability than other computer networks choosing not tomonitor the content <strong>of</strong> their system.48B. Congressional Reaction to Stratton Oakmont v. ProdigyServices Co.: The CDAIn response to the decision in Stratton Oakmont, Congresspassed Section 230 <strong>of</strong> the Consumer Decency Act <strong>of</strong> 1996.49 In41. See id. at *5.42. See id. at *2.43. See id. at *4.44. See Stratton Oakmont, 1995 WL 323710 at *3.45. See id. at *3.46. See id.47. See id.48. See id. at *5.49. 47 U.S.C. § 230 (1996).
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