Liability Analogies - Discussion

SERVICE PROVIDER LIABILITY

Liability Analogies: Discussion

● 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; Republisher/Disseminator; Common Carrier; Traditional Mail; Public Forum; Traditional Bulletin Board; Broadcaster. E-Law 3.0.1.

§ Press/Publisher

Service Provider as print publisher.

There are two types of print publishers, primary and secondary. The primary publisher takes an active role in the creation and dissemination of information; basically "the publisher." There is some constitutional protection. A primary publisher is generally thought to have knowledge of what is being published. Whether or not knowledge is required as an element to prove liability depends on the crime. E-Law 3.0.1.

One case where the court found an on-line service provider liable is Stratton Oakmont v Prodigy Services Co. In Stratton, the 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.

A secondary publisher generally has no control over the content of the messages; for example, a press operator or mail person. A secondary publisher is generally presumed ignorant of the content and treated like a republisher or disseminator of information. E-Law 3.0.1.

§ Republisher/Disseminator

Service Provider as republisher or disseminator of media.

Generally a republisher or disseminator is "someone who circulates, sells, or otherwise deals in the physical embodiment of the published material;" E-Law 3.0.1. citing Jenson., for example, a bookseller, librarian, etc. A republisher/disseminator is generally held to a minimum standard of liability, which is the "know or have reason to know standard." In Smith v. California, the Supreme Court held that strict liability for a distributor was too restrictive. One case where the court treated an on-line service provider like a republisher/disseminator was in Cubby Inc. v CompuServe, Inc. In Cubby, the court held that CompuServe was in essence "an electronic, for-profit library." The court then when on to state that the "know or have reason to know" standard should apply. Cubby. Summary judgment in favor of CompuServe was granted. Cubby.

§ Common Carrier

Service Provider as a common carrier.

A common carrier is a service that: "is [of] a quasi-public character, which arises out of the undertaking ‘to carry for all people indifferently ... .’ This does not mean that the particular services offered must practically be available to the entire public; a specialized carrier whose service is of possible use to only a fraction of the population may nonetheless be a common carrier if he [or she] holds himself [or herself] out to serve indifferently all potential users." E-Law 3.0.1. citing National Association Of Regulatory Television Network. Generally, a common carrier is considered to be like a 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; for example, the use of the telephone to convey obscene, indecent, or harassing messages is outlawed (exception if provisions are made so that minors cannot receive the messages). There are also various state and local obscenity laws. Since material that is transmitted by computer is either by telephone wire or network connection, there is a potential for liability anywhere in the nation. E-Law 3.0.1.

§ Traditional Mail

Service Provider as traditional mail person.

Electronic Communication Act gives e-mail the same kind of privacy as "regular mail." Basically it state that: "[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.

It is important to note that commercial U.S. mail enjoys some constitutional protection. This may be relevant in Cyber Promotions, Inc. v. American Online Inc. Presently in Cyber Promotions, the court has temporarily restrained AOL from blocking Cyber Promotions Inc.’s e-mail to AOL recipients. However it should also be noted that many large networks are strictly for educational purposes which could justify denial of access for profit making purposes on some networks. E-Law 3.0.1.

§ Public Forum

Service Provider as public forum.

Public fora is generally thought of as parks, streets, university ‘pits’, local town squares, etc. Many believe that computer information systems, more specifically bulletin boards, are becoming a new public forum. Regarding first amendment protection, forums can be classified as either a traditional public forum, a limited public forum, or a nonpublic forum. Each level is provided differing degrees of constitutional protection. E-Law 3.0.1.

At times, on-line service providers may be analogized to either a landlord or a dance hall proprietor when confronting the innocent infringer provision within our copyright law. Regarding the landlord analysis, courts have stated, "if landlord lets his premises without knowledge of the impending infringement by his tenant, exercises no supervision over him, charges a fixed rental and receives no other benefit for the infringement, and contributes in no way to it, it has been held that the landlord is not liable for his tenant’s wrongdoing." On the other hand, court have held "the dance hall proprietor liable for the infringement of copyright resulting from the performance of a musical composition by a band or orchestra whose activities provide the proprietor with a source of customers and enhanced income." E-Law 3.0.1.

This public forum classification may become extremely important to universities. In a recent case, Forbes v. Arkansas Educational Television Network, the 8th circuit held that a debate was a limited-purpose public forum and a governmentally owned and controlled television station may not exclude a legally qualified candidate from a debate organized by it. Universities that provide Usenet servers are now wondering if they will be treated similarly.

§ Traditional Bulletin Board

Services Providers as traditional bulletin board.

Generally, a proprietor is liable for content of bulletin boards. Courts have held that whoever has the authority to remove a sign, or has allowed or encouraged its placement, could be held liable. Element usually include knowledge, which could be shown through an agent, timing, and possibly whether the poster is an invitee or trespasser.

§ Broadcaster

Service Provider as broadcaster.

Communications Act of 1934 gives the F.C.C. the authority to govern broadcasting. Content regulation has been allowed because of limited resources and to protect children from inappropriate material. Authority of the F.C.C was extended to cable television and cable audio. Until 1976, the F.C.C. refused to regulate the computer technology industry because it was considered data processing. However, the F.C.C. is now reasserting it’s authority to regulate the computer technology industry. 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." Looking to the future, the possibility of computers over the airways is conceivable as technology advances and this analysis could become even more relevant in the future. 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