Liability Analogies

SERVICE PROVIDER LIABILITY

Liability Analogies: Overview

● How is computer information viewed by the law?

Is it more like a newspaper, a common carrier, or is it unique?

How computer information is characterized, whether it is the same as or different than other media, is a key step when analyzing whether a Service Provider should be held liable for a specific activity.

● Liability Based on Traditional Classifications:

§ Press/Publisher

Two types of print publishers:

(1) Primary;

Stratton Oakmont v Prodigy Services Co. Court stated "PRODIGY held itself out as an on-line service that exercised editorial control over the content of messages posted on its computer bulletin boards, thereby expressly differentiating itself from its competition and expressly likening itself to a newspaper." Stratton.

(2) Secondary. E-Law 3.0.1.

§ Republisher/Disseminator

Minimum standard of liability -- "know or have reason to know standard." E-Law 3.0.1.

Cubby, Inc. v CompuServe, Inc. Court held that CompuServe was in essence "an electronic, for profit library." Court held that the "know or have reason to know" standard should apply. Cubby.

§ Common Carrier

Generally considered secondary publishers and held to "know or have reason to know" standard. E-Law 3.0.1.

However, not all communication over a common carrier are unregulated. E-Law 3.0.1.

There are also various state and local obscenity laws. E-Law 3.0.1.

Material transmitted by computer is either by telephone wire or network connection. Potential for liability can arise anywhere in nation. E-Law 3.0.1.

§ Traditional Mail

Electronic Communication Act gives e-mail the same kind of privacy as "regular mail."

[whoever] takes any letter .. out of any post office or any authorized depository for mail matter, or from any mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroy the same...

E-Law 3.0.1. citing Mail, 18 U.S.C. §1702.

Commercial U.S. mail enjoys some constitutional protection. E-Law 3.0.1.

Cyber Promotions, Inc. v. American Online Inc. Court has temporarily restrained AOL from blocking Cyber Promotions Inc.’s e-mail to AOL recipients. Cyber.

However, many large networks are for educational purposes which could justify denial of access for profit making purposes. E-Law 3.0.1.

§ Public Forum

Public fora: parks, streets, university "pits," local town squares, etc. E-Law 3.0.1.

Computer information systems, more specifically bulletin boards, are becoming a new public forum. E-Law 3.0.1.

Some First Amendment protection. E-Law 3.0.1.

§ Traditional Bulletin Board

Generally, a proprietor is liable for the content of bulletin boards. E-Law 3.0.1.

It has been held that whoever has the authority to remove a sign, or has allowed or encouraged its placement, could be held liable. E-Law 3.0.1.

§ Broadcaster

Communications Act of 1934 gives the F.C.C. the authority to govern broadcasting. E-Law 3.0.1.

Content regulation allowed because of limited resources and to protect children from inappropriate material. E-Law 3.0.1.

Authority of F.C.C extended to cable television and cable audio. E-Law 3.0.1.

Prior to 1976, the F.C.C. refused to regulate the computer technology industry. E-Law 3.0.1.

And, under the Communications Decency Act the F.C.C. has been given power to describe "measures which are reasonable, effective, and appropriate to restrict access to prohibited communications." Communication Decency Act.

Possibility of computers over the airways is conceivable as technology advances. E-Law 3.0.1.

● Summary

Computer information systems have been analogized to other communications media. Service Providers may find themselves being compared to a newspaper in one instance and a common carrier in another. At other times, Service Providers may find no analogous media classification. Specific legislation in some areas has been enacted. However, for Service Providers concerned about liability, there still remains many uncharted and gray areas within the law.

Service Provider Liability Pages

Introduction • Table of Contents
Servcie Providers - Overview • Service Providers - Discussion • Liability Analogies - Overview • Liability Analogies - Discussion • Defamation - Overview • Defamation - Discussion • Intellectual Property - Overview • Intellectual Property - Discussion • Obscenity - Overview • Obscenity - Discussion • Criminal - Overview • Criminal Discussion • Privacy - Overview • Privacy - Discussion • Policy Discussion • Conclusion • Pocket Part • Notes & Links

Prepared for Professor Laura Gasaway's Cyberspace Law Seminar (Law - 357C)
UNC School of Law - Spring 1997

By: Ashe Lockhart (Webmaster) & Carol Kozar

Instructor: Laura N. Gasaway, Professor of Law and Director of the Katherine R. Everett Law Library