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From: mnemonic@eff.org (Mike Godwin)
Subject: Re: sysop liability/responsibility
Message-ID: <1991May20.124241.18192@eff.org>
Organization: The Electronic Frontier Foundation
References: <1991May20.051224.16358@gn.ecn.purdue.edu>
Distribution: usa
Date: Mon, 20 May 1991 12:42:41 GMT
Lines: 56

In article <1991May20.051224.16358@gn.ecn.purdue.edu> psun@gn.ecn.purdue.edu (Pete) writes:
>
>The original objector, seeing 
>no firm footing, subtly shifted topic into sysop liability.
>It is this persons contention (and this person claims to be
>something of an authority on communication law) that a sysop
>can be held liabel for anything posted on his system.  This 
>doesn't seem unreasonable.  The person then further states
>that any system that receives the automated mailing from that
>system can likewise be held liabel for its contents.  

As a lawyer, I've been doing research on the issue of sysop liability
for the Electronic Frontier Foundation. It is by no means clear
that mere republication by a sysop of (say) libelous material
would make the sysop liable. Bulletin-board systems are run differently
from newspapers, magazines, and broadcast stations--the latter are
liable for republication because the operators or their agents
always have an opportunity to review the material they republish.

This is not the case for many BBSs--many postings to BBSs, like postings
to Usenet, are not normally reviewed by system operators, and the 
volume of traffic on many BBSs (and certainly on Usenet) makes such
review impossible.

Law professor (and software author) Loftus Becker argues in an article
for the Connecticut Law Review that sysops should be liable only if
actual knowledge of the libelous material is shown. This conclusion,
in my opinion, dovetails nicely with the Supreme Court's reasoning in
Gertz v. Robert Welch Inc. (1973), in which the standard of liability
for public figures is explained as being lower than that for private
individuals because public figures have more access to the media to
correct defamation. In the world of BBSs, typically, the defamed person
has as much potential access to correct the defamation as the defamer had to 
spread it in the first place. (Just as a public figure may go to a 
different newspaper to correct defamation in the NATIONAL ENQUIRER,
a person defamed on a BBS may seek access to another BBS to tell his
story.)

The law on this issue is not settled, of course. There have been very
few, if any, cases concerning BBS defamation (primarily, I believe,
because the remedy of responding to the defamer is so much easier than
the remedy of suing him). So anyone who claims that the law is settled
in this area is not telling the truth.



--Mike




-- 
Mike Godwin,        |         To see a world in a grain of sand
mnemonic@eff.org    |         And heaven in a wild flower
(617) 864-0665      |         Hold infinity in the palm of your hand
EFF, Cambridge, MA  |         And eternity in an hour