Volume Four, Issue Thirty-Seven, File 9 of 14 THE COMPUSERVE CASE A STEP FORWARD IN FIRST AMENDMENT PROTECTION FOR ONLINE SERVICES Presented by Electronic Frontier Foundation Introduction ~~~~~~~~~~~~ by Mike Godwin (mnemonic@eff.org) in EFFector Online 3.03 By now you may have heard about the summary-judgment decision in Cubby, Inc. v. CompuServe, a libel case. What you may not know is why the decision is such an important one. By holding that CompuServe should not be liable for defamation posted by a third-party user, the court in this case correctly analyzed the First Amendment needs of most online services. And because it's the first decision to deal directly with these issues, this case may turn out to be a model for future decisionsin other courts. The full name of the case, which was decided in the Southern District of New York, is Cubby Inc. v. CompuServe. Basically, CompuServe contracted with a third party for that user to conduct a special-interest forum on CompuServe. The plaintiff claimed that defamatory material about its business was posted a user in that forum, and sued both the forum host and CompuServe. CompuServe moved for, and received, summary judgment in its favor. Judge Leisure held in his opinion that CompuServe is less like a publisher than like a bookstore owner or book distributor. First Amendment law allows publishers to be liable for defamation, but not bookstore owners, because holding the latter liable would create a burden on bookstore owners to review every book they carry for defamatory material. This burden would "chill" the distribution of books (not to mention causing some people to get out of the bookstore business) and thus would come into serious conflict with the First Amendment. So, although we often talk about BBSs as having the rights of publishers and publications, this case hits on an important distinction. How are publishers different from bookstore owners? Because we expect a publisher (or its agents) to review everything prior to publication. But we *don't* expect bookstore owners to review everything prior to sale. Similarly, in the CompuServe case, as in any case involving an online service in which users freely post messages for the public (this excludes Prodigy), we wouldn't expect the online- communications service provider to read everything posted *before* allowing it to appear. It is worth noting that the Supreme Court case on which Judge Leisure relies is Smith v. California -- an obscenity case, not a defamation case. Smith is the Supreme Court case in which the notion first appears that it is generally unconstitutional to hold bookstore owners liable for content. So, if Smith v. California applies in a online-service or BBS defamation case, it certainly ought to apply in an obscenity case as well. Thus, Cubby, Inc. v. CompuServe sheds light not only on defamation law as applied in this new medium but on obscenity law as well. This decision should do much to clarify to concerned sysops what their obligations and liabilities are under the law. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Highlights of the CompuServe Decision ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ by Danny Weitzner (djw@eff.org) in EFFector Online 3.03 "CompuServe's CIS [CS Information Service] product is in essence an electronic, for-profit library that carries a vast number of publications and collects usage and membership fees from its subscribers in return for access to the publications. CompuServe and companies like it are at the forefront of the information industry revolution. High technology has markedly increased the speed with which information is gathered and processed; it is now possible for an individual with a personal computer, modem, and telephone line to have instantaneous access to thousands of news publications from across the United States and around the world. While CompuServe may decline to carry a given publication altogether, in reality, once it does decide to carry a given publication, it will have little or no editorial control over that publication's contents. This is especially so when CompuServe carries the publication as part of a forum that is managed by a company unrelated to CompuServe. "... CompuServe has no more editorial control over ... [the publication in question] ... than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would for any other distributor to do so." "...Given the relevant First Amendment considerations, the appropriate standard of liability to be applied to CompuServe is whether it knew or had reason to know of the allegedly defamatory Rumorville statements." Cubby, Inc. v. CompuServe, Inc. (90 Civ. 6571, SDNY) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For the full opinion, please see: CUBBY, INC., a Corporation d/b/a SKUTTLEBUT, and ROBERT G. BLANCHARD, Plaintiffs, v. COMPUSERVE INC., d/b/a RUMORVILLE, and DON FITZPATRICK, individually, Defendants No. 90 Civ. 6571 (PKL) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK October 29, 1991, Decided October 29, 1991, Filed