IX. LIABILITY FOR COMPUTER INFORMATION SYSTEM CONTENT

In order to determine who is liable for illegal activity of the kind so far discussed, it is necessary to know how computer information systems are viewed by the law. Computer information systems may be seen by the law as analogous to one of the other communications media, such as newspapers or common carriers, or they may be seen as unique media. Specific legislation geared towards the computer media has already been discussed. However, the law still leaves some issues unre{olved. To resolve suchissues, it is necessary to understand how other media are regulated, and how computer information systems are similar to or different from those media.

In all cases where the law would hold a party guilty for actions carried out on a computer information system, this paper assumes that the SYSOP is liable if he or she is the initial cause of that violation because the law, by its terms, would clearly apply to the system operator. The primary question at issue here is the extent of a SYSOP's liability for illegal conduct conducted by the users of the computer information system.

A. Information System as Press

Many services on a computer information system are similar to those of print publishers. Just as there are magazines and newspapers, there are electronic periodicals. Just as there are street corner pamphleteers, so are there E-mail activists. Just as First Amendment privileges apply to the print media, so, one can argue, they should apply to the electronic press. Often the only practical difference between print media and electronic media is paper. In fact, with electronic word processing and page layout programs used by most print publishers, even printed periodicals at one stage exist in the same form as electronic journals do when they are published.

Even bulletin board operators sometimes see themselves as being analogous to print publishers. Prodigy is an example of a service that sees itself as a publisher. In fact, Prodigy refers to the people who screen messages posted in their conferences as " editors" and not censors, and Prodigy claims all of them have journalism backgrounds.[441] Both Prodigy and the local newspaper take "articles" by "authors" and "publish" them in their respective media for the consumption of their "subscribers."

There are two types of publishers, primary and secondary. A primary publisher is presumed to play a part in the creative process of creating the message which is then disseminated.[442] Primary publishers are what one generally thinks of when thinking of publishers. Prodigy claims to be such a publisher. While the Constitution provides some protection to the editor's judgment as to what to print,[443] the protection is not complete. All of the restrictions on content discussed earlier apply to publishers-advocacy of lawless action, child pornography, obscenity, defamation, etc. The SYSOP, as an electronic publisher, shares the same liability as a print publisher would, for example, the *New York Times*[444] "actual malice" standard for defamation, and a "knowing" standard as required by the statutes forbidding the transportation of material involved in child pornography.[445] The publisher is generally held to know what is being published because he or she has editorial control over the material that is published.

The question then becomes, is knowledge enough to result in liability? This is determined by the actual crime with which the publisher is charged. Defamation generally requires the publisher to have published the defamation with "knowing or reckless disregard for the truth."[446] For a SYSOP, at least a "know or have reason to know" standard would be necessary. A publisher generally knows he or she is publishing, as well as what is being published. A SYSOP for a large computer information system with a lot of users may not be able to keep track of all of the electronic journals and messages on bulletin boards which are being run on his or her system. While a SYSOP may have the same editorial control that a print publisher has, the sheer size may effectively prohibit actual editorial control over what is being published over the computer system. For this reason, it would be unfair to hold a SYSOP to a standard that requires less than a "knowing or reason to know" standard.

An argument for this minimum requirement is supported by some cases, for example, those which do not allow the publisher to be held liable for everything in his or her periodical, such as the safety of products sold by their advertisers.[447] As the court in *Yuhas v. Mudge* held,

"[t]o impose the [duty to check the truth of the claims of all of their advertisers] upon publishers of nationally circulated magazines, newspapers and other publications would not only be impractical and unrealistic, but would have a staggering adverse effect on the commercial world and our economic system. For the law to permit such exposure to those in the publishing business ... would open the doors to 'liability in an indeterminate amount for an indeterminate time, to an indeterminate class.'"[448]

The converse of *Yuhas v. Mudge* also supports this proposition. In *Braun v. Soldier of Fortune Magazine, Inc*.[449] a magazine was held liable for the results of running a personal services advertisement for, what turned to be, an assassin.[450] The court said the publisher knew of the likelihood that criminal activity would result from an ad such as the one at issue, as many newspaper and magazine articles had linked past *Soldier of Fortune* personal services ads with criminal convictions.[451] The t est the court used was "whether the burden on the defendant of adopting adequate precautions is less than the probability of harm from the defendant's unmodified conduct multiplied by the gravity of the injury that might result from the defendant's unmodified conduct."[452] Employing this test, the court said the proper balance should hold the publisher liable when "the advertisement on its face would have alerted a reasonably prudent publisher of the clearly identifiable unreasonable risk of harm to the public that the advertisements posed."[453] The court, in accord with *Yuhas v. Mudge*, said that the publisher's First Amendment concerns should be protected by not requiring the publisher to actually investigate the advertisements, and to only impose liability where a reasonably prudent publisher would determine that an ad "on its face" posed "a clearly identifiable unreasonable risk that the offer in the ad is one to commit a serious violent crime."[454]

Operators of large systems are quick to support the view that the job of monitoring every communication on their systems would be a prohibitively large task.[455] If a "know or have reason to know" standard were applied to computer information systems, of fending material reported to a SYSOP would have to be dealt with under threat of liability. Also, any offending material discovered by the SYSOP would need to be removed. A SYSOP also could not avoid monitoring for improper content, knowing such content is present, and then later claim ignorance. However, holding a SYSOP responsible even for material that he or she did not know was on the computer system would require a much larger time commitment on the part of the SYSOP or the hiring of staff to supervise the activities taking place on the computer system. Most small hobbyists running bulletin board systems would not be able to support this additional commitment and would be forced to cease operating out of fear of liability. Larger commercial services would have to either increase costs to the users or decide that providing some services are no longer worth the expense. The net result would be a contracting of the number of outlets for free expression by means of computer. By requiring at least a "reason to know" standard, a balance can be struck-the service can be provided, but a SYSOP could not hide his or her head in the sand to avoid liability. Any problem brought to the SYSOP's attention would have to be addressed; any problem the SYSOP discovered would also need to be taken care of; and any problem likely to be present could not be ignored by the SYSOP.

A secondary publisher is someone who is involved in the publication process, such as a press operator, mail carrier, or radio and television engineer, who usually does not know when a statement he or she transmits is defamatory and is usually not in a position to prevent the harm-a secondary publisher generally has no control over the content of the message, unlike a primary publisher.[456] Unless the secondary publishers know or have reason to know of the defamatory nature of the material they are transmitting, they are free from liability for defamation.[457] Secondary publishers are often treated synonymously with republishers which are discussed in the next section.

B. Information System as Republisher/Disseminator

A republisher, or disseminator, is defined as "someone who circulates, sells, or otherwise deals in the physical embodiment of the published material."[458] Some computer information systems are like republishers because all they do is make available file s, just like a book seller or library makes texts available. A librarian cannot be expected to read every book in the library, just as the system operator of a service may not be able to read every text file stored on the computer system. File servers and data bases can be large enough to store complete texts of books and periodicals, as users of services such as WESTLAW and LEXIS/NEXIS are well aware. Computer information systems can also contain massive quantities of software, E-mail and electronic journals, all stored ready for users to peruse like a library book. One of the characteristics of secondary publishers; is that they are "presumed, by definition, to be ignorant of the defamatory nature of the matter published or to be unable to modify the defamatory message in order to prevent the harm."[459]

The case that first established the immunity from liability for distributors, breaking the common law tradition, was *Smith v. California*.[460] *Smith* involved a bookseller who was convicted of violating a statute that made it illegal to deal in obscene materials. The lower court held violators of the statute strictly liable. However, the court held that a law which holds a bookseller strictly liable for the contents of the books he or she sells is unconstitutional. Justice Brennan stated his reasons as follows:

"For if the bookseller is criminally liable without knowledge of the contents ... he will tend to restrict the books he sells to the ones he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop . It would be unreasonable to demand so near an approach to omniscience.' And the bookseller's burden would become the public's burden ... . The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly."[461]

While this case did not determine the degree of liability appropriate for a bookseller, it did find that strict liability was too restrictive.[462] Later courts, however, were willing to set a minimum standard of liability, and that standard was set to a "know or have reason to know" standard.[463] In addition, secondary publishers are not required to investigate the contents of the messages they are delivering in order to avoid liability.[464] So far, one court has applied the *Smith*[465] analysis to computer information systems. *Cubby, Inc. v. CompuServe, Inc.*[466] is a major decision supporting the analogy of the computer information system as a republisher or disseminator of media. CompuServe was one of the first public computer information systems, founded in 1969 as a time-sharing system by H&R Block in order to make use of some of its surplus computer facilities.[467] CompuServe is now so large that it contracts out its editorial control of various discussion groups to other companies, who maintain the forum in accordance with CompuServe's general guidelines.[468] The groups maintaining the forums are similar to print publishers-they take articles submitted by users and then publish t hem, exerting editorial control over the material where necessary. CompuServe works, in essence, like an electronic book store. CompuServe sells to its users the materials that the discussion groups publish. In *Cubby*, one of the forums uploaded and made available an on-line publication which defamed the plaintiff.[469] CompuServe had no opportunity to review the periodical's contents before it was made available to CompuServe's subscribers.[470] District Judge Leisure held that, since CompuServe had no editorial control over the periodical, and CompuServe did not know or have reason to know of the defamation contained in the periodical, CompuServe was in essence "an electronic, for-profit library."[471] Like a bookstore or library, CompuServe had the option to carry or not to carry the periodical, but once the decision was made CompuServe had no editorial control over the periodical. The court recognized the function of technology and admitted that a computer database is the functional equivalent to a news distributor or a public library, and therefore, so as not to impede the flow of information, the same "know or have reason to know" standard should apply.[472]

This holding has a number of profound implications for the law governing computer information systems. First, it establishes a clear determination of SYSOP liability: where the SYSOP does not exert editorial control, and does not know or have reason to k now of the dissemination of offensive material, he or she cannot be held liable. This also implies that once a SYSOP is made aware, or has reason to believe, that the computer system is being used for illegal purposes, he or she is obligated to remedy the situation under penalty of liability. It also implies that a SYSOP can reduce potential liability by avoiding awareness of message content on his or her system, limited by the "reason to know" element-a SYSOP could not, however, escape liability by sticking his or her head in the sand while knowing that the computer information system was likely being used for illicit purposes. The scope of this holding is arguably broad, especially since the court relied on an obscenity case to determine a defamation issue. This means that the same standard may now apply in both defamation and obscenity cases involving computer systems whose operators do not exert editorial control.[473] However, the decision also may be limited to systems so large that the System Operator could not monitor the entire system's content.

C. Information System as Common Carrier

Network transmissions, E-mail, and some other features of a computer information systems such as "chat" features all work in a way similar to 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."[474]

Importantly, a computer information system need not be classified according to only one communications analogy - a system can act at times like a publisher, and at times like a common carrier. A service is defined as a common carrier when it acts as such based on the way it conducts its activities.[475]

Common carriers have generally been considered secondary publishers,[476] and as such, have traditionally functioned under a reduced standard of liability.[477] That standard is, once again, a "know or have reason to know" standard of liability.[478] This standard has been widely adopted and applied to the electronic communications media: from telegraph,[479] to telephone,[480] and even to options such as telephone answering services.[481] There are a number of reasons for applying a knowing standard to a common carrier.

One reason is efficiency; service providers would not be able to do their job transmitting as well if they also had to monitor content.[482] Another reason is fairness; common carrier operators are not trained in what is libelous and what is not, and, eve n if they were, they would have to make many decisions at a quick rate-not a fair burden to place on the common carrier.[483] And a third reason is privacy; by removing a need for common carriers to monitor content of transmissions, the likelihood is incr eased that transmissions will be held private. A "know or have reason to know" standard makes a lot of sense for computer networks, as all of the above interests would be served by regulating a network as a common carrier.

Like a common carrier, computer networks carry data from one computer to another with no regard for the information being transferred. Data that is transferred over a computer network often consists of electronic mail passively being forwarded from an ac count on a sending machine to an account on a receiving machine. Network traffic may also contain confidential documents being passed from computer to computer. Even faxes may be sent by E-mail to distant fax machines to then be sent out over the teleph one system as a local call.[484] Support for a "knowing" standard is gained from the Electronic Communications Privacy Act of 1986[485] which statutorily applies this standard to the interception and use of intercepted E-mail and network communications. For a SYSOP to be liable for a user's illegal use of the system, the SYSOP would have to know or guess that the illegal use was going on, and he or she would then be under an obligation to prevent such a use.

It is worth mentioning at this point that not all communications over a common carrier are unregulated. There are some uses of electronic common carriers which are forbidden: an example is obscenity by phone. A recent issue with the growth of 900 teleph one numbers has been "dial-a-porn," where people can call a number and hear sexually oriented messages. The use of a telephone to convey obscene, indecent, or harassing messages is outlawed.[486] An exception is made for indecent telephone messages, so long as provisions are used to prevent minors from receiving these indecent messages.[487] Allowable safeguards include: scrambling messages so they cannot be understood without a descrambler, issuing a password by mail with age verification, or requiring a credit card number before transmission of the message.[488] While this statute applies only to communication over a telephone, it does not distinguish between aural and data communications. Without making this distinction, the statute may also cover connecting to a bulletin board system or other service which provides indecent material. If this statute were applied to computer information systems, as it is applied to dial-a-porn, SYSOPs would have to employ one of the same means of preventing access t o minors, and would have to make sure that the service offered met the standards of constitutionally protected indecency and that it did not cross the line into prohibited obscenity.[489]

As discussed earlier, there is no national standard for obscenity. A SYSOP would have to be careful not to break the obscenity laws in any state to which the computer information system reached. With the ease of access of a computer information system b y means of a long distance&127; telephone call, this would make computer information systems subject to the obscenity laws of every state. It is not hard to see how computer porn services should be subject to regulation in the same form as dial-a-porn. With a computer's ability to transmit images and sounds as well as text, the justification for regulating computer distributed indecent or obscene material is equal to or greater than the justification for regulating standard audio dial-a-porn. The distribution means is essentially the same-a wire connection from the sender to the receiver. In the case of dial-a-porn, this wire is a telephone line. In the case of material transmitted by computer, the wire is either a telephone line or a network connection. This similarity, in essence, is what one court has recently found and used to convict two system operators.[490]

Using two statutes similar to the one just mentioned covering transmitting obscenity by telephone,[491] a court in Tennessee has recently found two SYSOPs guilty of violating a statute outlawing the transportation of obscene material in interstate or foreign commerce,[492] and one that outlaws transporting obscene material via common carrier.[493] In the case,[494] a postal inspector in Tennessee ordered sexually explicit materials from the SYSOPs by way of their California bulletin board system.[495] Some of the material was delivered by UPS (a common carrier), and some was delivered by modem via the telephone system (also a common carrier).[496] A jury in Memphis found the material to be pornographic, and the SYSOPs were convicted on eleven counts of distributing pornography in violation of the two statutes.[497] This case is potentially very important for system operators. Although there is no national obscenity standard, there is potential liability anywhere in the nation (or world) for the SYSOP who does not either, 1. limit access to people from locations where material stored on the computer information system might be found obscene or 2. make sure that any material accessible would not be found obscene from anywhere in which the information may b e accessed. Simply put, this case made explicit the current state of liability for obscene material-a SYSOP must either avoid distributing questionable material, restrict access to people from more restrictive communities, or risk being held accountable to the courts anywhere were there is a telephone or network connection. As one court put it (in a defamation context): Through the use of computers, corporations can now transact business and communicate with individuals in several states simultaneously. Unlike communication by mail or telephone, messages sent through computers are available to the recipient and anyone else who may be watching. Thus, while modern technology has made nationwide commercial transactions simpler and more feasible, even for small businesses, it must broaden correspondingly the permissible scope of jurisdiction exercised by the courts.[498]

D. Information System as Traditional Mail

Since a major use for computer information systems is sending E-mail, it is only sensible to compare such a use to the U.S. mail. The U.S. mail is a type of common carrier mandated expressly by the Constitution.[499] U.S. mail, or "snail mail" is governed by a statute which gives "regular" mail the same kind of privacy that the Electronic Communications Privacy Act [500] gives E-mail. The postal service act punishes

"[w]hoever 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 bee n 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 destroys the same ... "[501]

This statute has the same effect as the statutes specifically geared towards electronic communications - it protects both mail in transmission,[502] as well as mail being stored for the recipient.[503] Just as the Electronic Communications Privacy Act protects stored communications in the form of an E-mail recipient's "mail box,"[504] so does the postal service protect a "snail mail" recipient's mail box.[505] U.S. mail recipients have certain protections which E-mail recipients may also create for themselves. U.S. mail recipients can ask the post office to block mail from particular senders who are distributing what the receiver sees as sexually offensive mail.[506] However, the reason for this protection from unpleasant U.S. mail - based on notions of trespass [507] - could easily apply to E-mail and network communications as well. In the case of electronic mail, a computer program could be set up to automatically reject incoming mail from certain senders. A program could also be used to search through the text of an incoming message and reject any message which contained certain terms which would indicate that the message's contents were something which the receiver did not want to see.

The same similarity analysis between E-mail and the U.S. Mail would work to preserve an advertiser's right to send out E-mail for commercial purposes, just as commercial U.S. mail enjoys some Constitutional protection.[508] The one significant bar to the creation of a large junk E-mail industry is access. The U.S. mail is a true common carrier and as such they do not prohibit material based on advertising content. E-mail in many contexts may appear to be a common carrier, but if it is sent over a company's computer system, for instance, there may be no way for an advertiser to gain access to the company's E-mail system. Similarly, large networks, such as the Internet, exist for educational purposes. While network authorities do not censor E-mail, in keeping the network in line with the definition of a common carrier, a user could still report a company which was trying to advertise over the network. Since the Internet is not meant to be used for profit making purposes, an offending company reported b y a user could be denied access privileges to the network.

E. Information System as Traditional Public Forum

For centuries, when people had ideas to communicate, they did so in public fora, such as parks, streets and sidewalks, and the local town square. These areas are usually owned by the government. In many ways, computer information systems, such as bullet in board systems, are becoming the new public fora.[509] These are mostly operated by individual citizens and corporations.

The First Amendment [510] (and the Fourteenth Amendment [511]) to the U.S. Constitution prohibits the government from restricting content based speech, or even expressive conduct because of the ideas expressed.[512] Governments can proscribe speech based on some of its aspects, such as obscenity and fighting words, but not on the basis of viewpoint.[513] The government may also impose reasonable time, place and manner restrictions on speech, as long as they are "justified" and the restrictions do not refer to the content of the regulated speech.[514] The law governing speech restrictions pertaining to state owned fora, or fora with sufficient government entanglement to constitute state-action, presumably should follow these First Amendment established principles. This has traditionally left government owned publicly accessible locations as places in which to engage in free speech activity, a right generally not enjoyed on private property. Of particular concern to the SYSOPs of privately run computer information systems, are the limits imposed on control of speech occurring on private property held open for public use. "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."[ 515] *Marsh* held that a woman could not be prevented from passing out leaflets in a town shopping district which was freely open to the public.[516] What made this situation unusual was that the town in which the woman wanted to pass out her leaflets (Chickasaw, Alabama) was then owned by the Gulf Shipping Corporation.[517] The court held that, because the privately owned town provided all of the services and facilities that would normally be provided by a publicly owned town-such as streets and sewers and the like-and because the company-owned town was otherwise indistinguishable from any other town, the company must also provide for the First Amendment right of the people who wanted to use the "public" areas in their normal fashion.[518] *Marsh* has be en interpreted expansively, and has been extended to shopping centers.[519] In *Logan Valley*, the Supreme Court held that a shopping mall is just like the business district of a company town- both are open to the community and to those passing through, an d both serve the same purpose.[520] The Court held that "the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which this property is actually put."[521] *Marsh* and *Logan Valley* suggest that, if a SYSOP makes his or her system wide open to anyone for any purpose, anyone who wishes to express himself or hers elf on the system may not be censored based on content, just as the government could not restrict speech on content-based grounds. The more the SYSOP limits use of the system, the more weight the SYSOP's ownership interest will have over the user's First Amendment rights.

These cases were not all the Supreme Court had to say on the issue, however. In *Lloyd Corporation, Ltd. v. Tanner*[522], another shopping center case, the Supreme Court held that, when there is another outlet for speech, not on private property, to be heard, a landowner does not need to provide its own private property for the speaker.[523] The Court noted that *Marsh* held only that where "private interests were substituting for and performing the customary functions of government, First Amendment free doms could not be denied where exercised in the customary manner...&127; ."[524] This decision was refined yet further in *Hudgens v. N.L.R.B.*[525], which held that *Marsh* applies only to cases where privately owned property has taken on *all* of the attrib utes of a town-such as residential buildings, streets, a system of sewers, a sewage disposal plant, and a "business block."[526] The Court held that the only way a speaker's First Amendment rights may trump the property rights of the owner of, say, a shop ping center, is when that shopping center is the functional equivalent to an entire town, complete with the above listed services.[527] *Hudgens* reflects the current state of private forum law. However, using a traditional private forum model, with this "functional equivalent to the entire town" standard in place, regardless of the extent to which a communications system takes on the aspects of a "community," and no matter how open the system is , until the Supreme Court fundamentally changes its analysis, a user only has speech rights at the sufferance of the System Operator.[528] If the computer information system was the functional equivalent to a town, the user may have greater First Amendment rights, but since computer information systems do not provide a system of sewers and streets, the system operator retains control over how speech is exercised on his or her system. This is especially likely to be true where the System Operator requires a service contract before access to the system is given. In this case, not only is the SYSOP not providing the required sewage treatment plants and residential buildings, but the system is also arguably not even open to the public.

F. Information System as Traditional Bulletin Board

For centuries courts have been looking at liability for notices posted on bulletin boards, bathroom walls, sides of buildings, and wherever else defamatory material can be posted. In the past few hundred years there has been little debate about proprietor liability for the content of the "bulletin boards" under its control. The law of Great Britain, as parent to the U.S. legal system, is illustrative. The English Star Chamber in *Halliwood's Case* (1601) held that "if one finds a libel, and would keep himself out of danger, if it be composed against a private man, the finder may either burn it or deliver it to a magistrate."[529] A fairly modern case (1937) which is cited more frequently in this country is *Byrne v. Deane*. This case involved a poem, placed on the wall of a private golf club, which was alleged to be defamatory of one of the club's members.[530] Judge Hilbery held that the owners of the club could be held liable as republishers of the defamation.[531] He based this conclusion on the fact that the club owners had complete control of the walls of the club;[532] they had seen the poem;[533] they could have removed it;[534] and yet they did not.[535] In the words of Judge Greer, "by allowing the defamatory statement ... to rest upon their wall and not to remove it, with the knowledge that they must have had that by not removing it it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it."[536] Courts in this country have made rulings on the posting of defamatory material since at least 1883. *Woodling v. Knickerbocker*[537] involved two placards left on a table at a furniture dealer, one which read, "[t]his was taken from Dr. Woodling as he would not pay for it; for sale at a bargain,"[538] and the other which read, "Moral: Beware of dead-beats."[539] The court found for the plaintiff, holding that regardless of who left the sign, anyone who allowed or encouraged its placement, or who had authority to remove the sign after it was placed, could be held liable for its publication.[540] Importantly, the court also discussed the liability of one of the furniture store owners who had not seen the defamation.[541] The court said that she could not be held liable for her partner's nonfeasance in removing the sign because there was no way to imply that she had given him authority to act as a publisher of defamatory material, and this was beyond the scope of their business.[542] This situation was contrasted with that of a business involved in publishing or selling books or magazines.[543] In the case of a publisher or seller, all of the partners are to be regarded as having given authority to the other partners in deciding what to publish or sell, and therefore all of the partners are to be held liable for defamation.[544] This implies that a SYSOP who either does not monitor the content of publicly accessible parts of the system under his or her control, or a SYSOP or computer information system owner who delegates such responsibility may still be held liable for defamatory material. *Fogg v. Boston & L. R. Co.*[545] supports this theory. In this case, a newspaper article defaming a ticket broker was posted in the defendant's railway office.[546] The court held that a jury could properly have found that the defendant, by way of its a gents, had knowledge of what was posted in its office.[547] Also, by not having it removed in a timely manner the company could be construed as having endorsed or ratified the posting of the defamatory article, even if it had not been responsible for its posting in the first place.[548]

*Hellar v. Bianco* is a case in which the proprietor of an establishment was originally unaware of the defamation, and this case raised the issue as to what constituted a reasonable time to remove defamatory posts once a proprietor is made aware of their existence.[549] *Hellar* involved "libelous matter indicating that appellant was an unchaste woman who indulged in illicit amatory ventures"[550] which was scrawled on a men's room wall of a tavern.[551] After the woman who was the subject of the note beg an getting calls about the graffiti, the bartender was asked to have the message removed.[552] Later that evening, when it was not removed, the tavern owner was charged with republication of the&127; libel.[553] The court held that republication occurred when the bartender knew of the libel, and had an opportunity to remove it, but did not do so.[554] In this set of circumstances, a short period of time was sufficient to constitute republication. A longer period of time was found not to constitute republication in *Tacket v. General Motors Corp*.[555] Tacket involved a defamatory sign posted in a GM factory.[556] The court said that it was conceivable that it could take three days to remove a sign because of the speed at which large bureaucracies work.[557] The court did say that a second sign which had been posted for seven or eight months was different and that a lengthy time of posting without removal could be found by a jury to be republication by implied ratification.[558]

A more recent case, *Scott v. Hull*,[559] appears, at first glance, to hold in a manner contrary to these earlier cases. In *Scott*, graffiti defaming the plaintiff was written on the side of a building.[560] The&127; plaintiff told the defendant about the graffiti and asked that it be removed; the defendant refused.[561] The court held that the building owners were not liable as republishers, and they were under no duty to remove the graffiti.[562] The reasoning behind this decision is that the viewing of the graffiti was not at the invitation of the owners - as it was in the earlier cases.[563] In *Scott v. Hull*, the graffiti was on the outside of the defendant's building.[564] It was placed there by strangers&127; and read by strangers.[565] The defamation was not put there by an act of the defendant, and the court refused to find liability for nonfeasance in this instance.[566] In *Hellar*,[567] the defamation was "published" in the restroom on the defendant's premises. The graffiti was placed there by invitees of the defendant,[568] and was read by other invitees.[569] *Byrne v. Deane*,[570] *Woodling v. Knickerbocker*,[571] and *Tacket v. General Motors Corp*.[572] are similar to Hellar. The same was true in *Fogg v. Boston & L. R. Co.*,[573] except there the defamation was even related to the defendant's business.

Invitee analysis of defamation raises two issues involving computer information systems. First, can someone post "outside" of a computer? An example of this might be someone who defames someone by electronic mail sent from one user on a computer to sever al others. If the injured party sued the operator of a bulletin board which also runs on that computer, the invitee analysis would indicate that the BBS operator could not be held liable. This would make sense assuming the BBS SYSOP has nothing to do with the electronic mail, and has no control over the mail system. Although the offending message is on the same computer as the bulletin board system, the mail does not appear on the computer at the request of the BBS operator, unlike a post left by a user invited to use the BBS. Messages sent by E-mail would go beyond the scope of the BBS's invitation; therefore it would be unreasonable to hold the bulletin board operator liable as responsibility would fall on the operator of the mail system. If, however, the BBS operator had been given the power to remove an offending message left anywhere on the computer system, then an agency argument would say that the BBS SYSOP has the duty to remove the offending message, or have someone else do it. This is similar to the case of graffiti in a bar - a bartender could not easily claim immunity from a defamation charge with the argument that removing graffiti was not the job of a the bartender. If the bartender is not hired to clean, the bartender could at least inform someone who was, rather than leave the defamatory graffiti in place.

The second issue the invitee analysis raises is messages posted by someone who is clearly not an invitee, for instance, a computer hacker who is essentially a trespasser. In this situation, a SYSOP should likely be required to remove any defamatory messages left by a hacker under the same reasoning as the above cited cases. These cases all assume that the writing was left by an invitee raising the presumption that the SYSOP is aware of the message, so just because defamatory messages are left by a trespasser does not mean the SYSOP or building owner should be any less liable if they know of the message, have the opportunity to remove it, and yet do not do so.

G. Information System as Broadcaster

With the rise of packet radio and radio WANS (wireless networks), the analogy of a computer information system as broadcaster is also of growing importance. Authority to govern broadcasting is given to the F.C.C. under the Communications Act of 1934.[574 ] The justification for content regulation over the airwaves is "spectrum scarcity." There are only so many radio and television stations that can be on the air at once. "Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard."[575] In order to preserve the "market place of ideas" from monopolization, the F.C.C. governs the use of the airwaves to preserve the rights of viewers and listeners to be in formed.[576] An equal concern is to protect children from inappropriate material; this is especially true because of radio and television's special reach - they can even bring indecent messages to those children too young to read.[577] Radio and television are given special treatment, including the "channeling" of constitutionally protected speech, because:

1. children have access to radios and in many cases are unsupervised by parents; 2. radio receivers are in the home, a place where people's privacy interest is entitled to extra deference; 3. unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and 4. there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest.[578]

These facts allow the F.C.C. to promulgate rules to channel constitutionally protected "indecent" speech to times of the day when children are not as likely to be in the listening audience, but the F.C.C. may not altogether prohibit indecent speech.[579] The four factors justifying channeling of speech do not work very well when applied to wired computer communication, such as computer information systems. No spectrum scarcity issue is involved when calling a computer information system. Any indecent material available via computer must be actively sought, as there is a reduced risk of having the telephone ring and being spontaneously assaulted by a computer spewing lewd data.[580] While computers, like radio receivers, are in the home, it takes an active effort to obtain indecent material via computer, so the risks of accidental exposure to such material at issue in the broadcasting situation are just not present. Finally, although children do have unsupervised access to computers, they also may have some potential unsupervised access to dial-a-porn and cable television. Neither dial-a-porn nor cable are restricted as severely as broadcasting. As far as the four factors justifying channeling of indecent speech applying to wireless data transmission (packet radio, radio-WAN), the element of spectrum scarcity comes back into play, giving the F.C.C. more of a reason to regulate computer communications sent via the airwaves. However, it is less likely that offensive material will accidentally be received, since data being broadcast may be encrypted in order to avoid its unauthorized interception by minors.

As well as channeling indecent speech, the other exceptions and guarantees of free speech that apply to publishers also apply to broadcasters. For instance, a broadcaster does not have the right to make defamatory statements with knowing or reckless disregard for the truth.[581]

Cable television and cable audio signals are governed in a similar fashion to regular broadcasting. These services are seen as an "ancillary" services to broadcasting, and therefore fall under the F.C.C.'s authority.[582] Like computer information system s, but unlike broadcasting, cable television must be actively brought into the home. Because of this, cable television traditionally was not seen as being as "pervasive" as broadcasting, and therefore the *Pacifica*[583] obscenity standard traditionally was not extended to cable.[584] Recent cable television regulation, however, acknowledges the growth of cable, which now reaches nearly sixty per cent of all television households.[585] The Communications Act of 1934[586] allowed a cable franchising authority to prohibit or restrict any service that "in the judgment of the franchising authority is obscene, or is in conflict with community standards in that it is lewd, lascivious, filthy, or indecent or is otherwise unprotected by the Constitution of the United States." The 1992 amendments to the Communications Act allow a cable operator to establish a policy of excluding "programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards."[587] Thus, this standard taken from *Pacifica* now can be applied to cable television. The new amendments require the F.C.C. to create regulations to channel indecent material onto a single cable channel which must then be blocked out unless requested in writing by the subscriber, thus preventing access by minors.[588] Also, analogous to the postal service statutes, the new cable regulations add a provision for&127; service users to have the ser vice provider block out unsolicited sexually explicit materials on request.[589] Because wired computer networks are more like cable, cable provides a better analogy than broadcasting. In fact, as mentioned earlier, teletext services are usually provided over cable television.

The use of computers over the air waves is currently limited, but it promises to increase in the future as technology advances. In any case, because computer data can be easily encrypted, radio networks do not share the same need for content restrictions that broadcasters require. While cable television is a better analogy for traditional computer information systems than is broadcasting, some of the other regulatory schemes still fit computer information systems more tightly. This is because computer information systems do not provide the same sorts of services as cable television. Rather, computers are used as the common carriers, bulletin boards, and electronic presses that have already been discussed.

Copyright 1994 - 1995 by P-Law, Inc., and Kenneth M. Perry, Esq. All rights reserved. Reproduction is permitted so long as no charge is made for copies, no copies are placed on any electronic online service or database for which there is a fee other than a flat access charge, there is no alteration and this copyright notice is included.

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