Defamation and Copyright Infringement Online

Can the victim sue the poster? Is the online service provider, like AOL, legally responsible for damages if the person used AOL to post the information? Is the newsgroup or bulletin board operator liable?

The Publisher

The law of defamation deals with things that people say that harm other people or their businesses. There's no doubt that the nature of online communications, which encourages the distribution of speech among private individuals, raises some unique legal issues.

Frequently, online service providers and newsgroup operators are faced with possible liability because one their users posted defamatory information on their system. When faced with this possible liability, they argue that the law should treat them like a newsstand or bookstore. They point out that a bookseller isn't generally liable for defamatory statements appearing in the books that he sells.

Critics say that the law should treat the online operators more like publishers and editors of newspapers. They say that if they publish defamatory statements, the law should hold them responsible. The law is still unclear. It might depend on the website's purpose, content and the degree of editorial control that the operator takes.

In one case, a California company operated an electronic bulletin board. A former employee sued the firm after somebody posted sexually harassing messages to the bulletin board. It cost the firm $105,000 to settle the case. The firm even notified the police and tried to stop the postings. This settlement suggests that employers must take extensive actions to prevent anybody from posting illegal messages on their electronic bulletin boards.

It's clear in this area of Internet Law that a person who publishes a defamatory statement online is liable to the defamed person. Anybody who thinks the Net is the Wild West for people-bashing is outright wrong.

By the way, if you're one of those people who receives "interesting" e-mail and likes to forward it to others, be careful about forwarding information about others that you know is untrue. If you forward defamatory information, you could be liable for re-publishing that material.

Online Providers--The Good Samaritan

There are a host of court decisions dealing with Internet service providers ("ISPs") and their liability for defamation. ISPs provide connections to the Internet. Some, like AOL, even organize online content-so the definition between simply making a connection and publishing information begins to blur.

ISPs say that they're just like the telephone companies. They don't edit information and can't monitor every message that passes through their system. They simply provide the means to passively transmit messages between customers. Recent federal legislation and judicial decisions tend to agree.

The federal government stepped in to provide some protection to ISPs when it passed the Telecommunications Act of 1996. A portion of that Act says that ISPs shouldn't be liable if someone else provides the information. Further, using software or a moderator to screen certain "red flags," like profanity, probably doesn't make the ISP a publisher either.

Several important lawsuits have dealt with the Act.

One lawsuit was filed after somebody placed a notice on an AOL bulletin board advertising t-shirts with offensive logos regarding the Oklahoma City bombing. The notice identified the plaintiff's name and telephone number. In fact, he didn't post the message at all, but this didn't stop the death threats against him. He sued AOL for allowing someone to post the sordid message.

The court dismissed the case. It stated, "Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content--are barred."

In another interesting lawsuit, Sid Blumenthal, an assistant to President Clinton, sued Matt Drudge and AOL. Drudge operates a well known political gossip website called the "Drudge Report." Drudge edits the Report and licenses it to AOL for marketing.

Blumenthal sued Drudge and AOL after an edition of the Drudge Report alleged that Blumenthal had a history of spousal abuse. The court dismissed the suit against AOL, but not Drudge, on the grounds that Drudge wrote the statements without AOL's involvement. Essentially, it ruled that the law protected AOL as an ISP, but it exposed Drudge to liability as the publisher.

Copyright

It shouldn't be surprising that similar legal issues surround the online posting and distribution of copyrighted materials. The content providers (the performers, writers, artists, and retailers) want to protect their copyrighted materials. Many website operators also want to abide by copyright laws, but they're concerned about new laws that could stifle the dynamic growth of the Internet.

Online bulleting boards make it especially easy for someone to upload a song, story or image to a bulletin board. The bulletin board operator then stores the digital file, and someone can come along and download the file. Generally, the bulletin board operator is liable for violations of copyright laws.

Clearly, the poster is also liable for copyright infringement. An interesting line of cases dealt with the Church of Scientology's Religious Technology Center ("RTC"). RTC sued several former Scientologists for copyright infringement and trade secret violations. This arose out of the defendants' posting of Scientology materials on the Internet. Overall, the cases held that individuals who post the infringing materials are liable for copyright infringement.

In some cases, the law will hold website and bulletin board operators liable too. They should use available technologies to prevent materials from being copied. Moreover, after they know about the infringement, they need to take appropriate steps to prevent additional infringement. Even a high traffic forum probably doesn't remove the operator's duty to prevent the unlawful distribution of copyrighted materials.

In March 1999, Novell secured a landmark judgement against a Belgium Internet bulletin board system operator. He said there were too many postings to have to monitor everything. However, the judgment confirmed that the operator was liable for allowing someone to post unlicensed software.

Online Providers--Limited Liability

As for the Internet service provider that provides the Internet connection and transmits the protected materials through its computers, the recently passed federal Online Liability Limitation Act (OLLA) provides extensive protections. Under OLLA, the ISP isn't liable as long as they are automatically transmitting the information and they aren't altering the content. The key factors include that the ISP: (1) doesn't actually know about the information, (2) doesn't make money from posting the infringing information, and (3) responds quickly to remove the material or disable access to the site Then, it's protected under the Act.

If you're the copyright owner and somebody is stealing your copyrighted material, OLLA requires that you undertake a very specific notification procedure with the ISP to force it to act.

If you're the website owner, OLLA can also have benefits for you. Suppose your ISP recklessly cancels access to your website after it receives a frivolous notice from someone alleging that you're infringing their copyright. Under OLLA, you could hold the ISP responsible for interrupting your business.

No Easy Way Out

This whole area requires a tough balancing act for the law. As is so often the case, the law is having trouble adopting itself to new technologies. While free speech and content development should be encouraged online, it shouldn't be at the expense of defamed people or infringed copyrights. Finding the correct balance is easier said than done.

Whether it's online or in a print magazine, defamation and copyright infringement should be taken seriously by the law. Free speech isn't about unfairly slamming other people or stealing their work.

ISPs, and operators of newsgroups, bulletin boards and chat rooms, can't be required to screen all the content passing through their systems. However, they can be held to a standard of reasonableness once they're on notice of a problem. In addition, clearly written policies should be placed on websites, and users should be held to those standards. The right to free expression online shouldn't be mistaken for the right to trample on others.