Policy Discussion

SERVICE PROVIDER LIABILITY

Policy Discussion

Many policy makers are lobbying to raise the standard of liability for Service Providers. Their efforts have come to fruition in the Communications Decency Act and in the Nation Information Infrastructure Task Force's White Paper (which may become the model for future legislation). These policy makers take the position that because Service Providers are in the best position to prevent infringement or access to obscene material, our system should therefore hold Service Providers liable. The rationale behind this scheme is that it would encourage service providers to avoid liability by developing technology and procedures that would minimize infringement, defamation, illicit obscenity, and crime, which are the source of service provider liability. The authors of the White Paper seem to suggest that the Service Providers' financial resources, their profit motive, and interest in avoiding risk would expedite the necessary development of these tools, which would protect copyright holders and other innocent parties.

Service Providers argue that in the absence of culpable conduct, they should not be held strictly liable for users' actionable conduct. Requiring Service Providers to screen the vast flow of information on the Internet would be an impossible task and could have a chilling effect on the Constitutional guarantee of free speech. And the Constitutional guarantee of free speech is so fundamental a liberty as to be only circumscribed in response to a compelling state interest. Additionally, Service Providers would ultimately pass the increased liability and operating costs on to the consumer, which might slow the growth and development of what promises to be the most democratic communications medium ever conceived.

So, should Service Providers be held liable for the conduct of their users? Service Providers make available a variety of services. Consequently, the courts tend to analogize the actions of Service Providers within an existing framework of traditional classifications. Ultimately, we are left with the question "is this current system of analysis sufficient to handle the new breed of claims arising out of the Internet?" The reasonable answer and measured response seems to be that is is premature to establish a broad policy with ramifications we cannot presently predict. Ultimately, the burdens of such policy, including infringement of free speech, would be born by innocent users and not by the deep pockets of Service Providers or other culpable parties.

Service Provider Liability Pages

Introduction • Table of Contents

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