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Trustworthy Information Systems Handbook: Appendix E, V.B.

Liability for Records/Information Contained on Web Site: Defamation

In general, courts have been reluctant to hold web site owners liable to defamatory statements made by others on their web site, such as statements made in chat rooms and other interactive medium. The Communications Decency Act, passed in 1996, states that no provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider. To date, courts have treated this language as a nearly complete bar against liability for users' defamatory postings. The safe-harbor only applies to information provided by another organization or person, however, and does not apply to information put on the web site by the defendant itself.

As a result, in general, computer bulletin board services are not liable when people post things without authorization, and when the web site operator does not create or control the content of the information available to its subscribers, but merely provides access to the Internet. In Cubby, Inc. v. Compuserve, Inc., No. 90 Civ 6571 (SDNY 1991). Cubby was suing Compuserve for libel, unfair competition, and business disparagement based on allegedly defamatory statements made in a publication included in a computerized database. The court found that Compuserve had no opportunity to review the allegedly defamatory information before it was uploaded into computer banks, from which it is immediately available to subscribers. In addition, Compuserve received no part of the fees charged for access to the relevant database; it has just one main subscription fee. The court found that Compuserve acted as a distributor, and not a publisher, of the statement and cannot be held liable for the statement because it did not know, and had no reason to know, of the statements. Once Compuserve decides to carry a publication, it has little or no editorial control over that publication's contents. In this situation, Compuserve is like a bookstore, library, or news stand.

On the other hand, an operator may become liable if it takes affirmative steps to cause copies to be made. For example, if a bulletin board service encourages people to upload documents, and it screens all documents and moves them to the appropriate generally available files, it may be considered to have "republished" the material. One who repeats or otherwise republishes defamatory matter is liable as if he or she had originally published it. But, vendors and distributors of such matter are not liable unless they knew, or had reason to know, about it. In Stratton Oakmont, Inc. v. Prodigy Services Company, Supreme Court, State of New York Index No 31063/94, Stratton is suing Prodigy for libel based on allegedly defamatory statements made on Prodigy's "Money Talk" computer bulletin board. Prodigy held itself out as an online service that exercised editorial control over the content of messages posted on its computer bulletin boards, thereby expressly differentiating itself from its competition, and expressly likening itself to a newspaper. It has a series of "content guidelines" and enforced them through an automatic software screening program. Prodigy actively utilized technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and bad taste. Prodigy is clearly making decisions as to content and such decisions constitute editorial control. As a result, Prodigy is a publisher rather than a distributor and can be sued for libel. Prodigy's conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than other computer networks that make no such choice (such as Compuserve, above).

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Appendix E

TIS Handbook last updated July 2002, Version 4.