Defamation and Privacy Violations Online: Colorado and Beyond

• Publication year: 1998
• Pages: 57
• Citation: Vol. 27 No. 5 Pg. 57

27 Colo.Law. 57 Colorado Lawyer 1998.

1998, May, Pg. 57. Defamation and Privacy Violations Online: Colorado and Beyond

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57

Vol. 27, No. 5, Pg. 57

The Colorado Lawyer
May 1998
Vol. 27, No. 5 [Page 57]

Specialty Law Columns
Law Practice Management
Defamation and Privacy Violations Online: Colorado and Beyond
by Brian J. Wolf, Arthur W. Porter
C 1998 Brian J. Wolf and Arthur W. Porter

Online computer networks such as the Internet have exponentially expanded opportunities to retain and disseminate private and defamatory information.1 Unlawful communications can be uploaded to a worldwide audience almost instantaneously with a few key strokes of a computer. For example, e-mail that is posted to an electronic bulletin board can potentially reach an unlimited number of subscribers in a matter of seconds

Compounding the issue is that in most instances the identity of the perpetrator is difficult or impossible to determine Indeed, with the vast, almost unlimited dissemination of the material, across multiple, global jurisdictions, the ability to calculate presumed damages is difficult, if not impossible, using any current standards. Due to the rapid proliferation of the Internet and other computer networks, it is important for practitioners to understand the laws of defamation and privacy and to be aware of how courts are applying traditional legal principals to new technologies

Until recently, there were no laws governing the transmission of digital information over online services, and, at present, there are no published Colorado decisions discussing either defamation or rights of privacy violations in connection with the Internet. However, there are a few published decisions from other jurisdictions concerning online defamation, and in 1996, Congress passed § 230 of the Computer Decency Act ("CDA").2 Section 230 protects online service providers and users from liability for offensive material appearing on their networks. Despite recent case law and the passage of the CDA, the liability for online defamation or privacy violations is still uncertain.3 This article briefly addresses the three leading cases dealing with online defamation and then summarizes the conventional law of defamation and privacy as interpreted by Colorado courts.

Leading Cases

CompuServe was the first online service provider to face a defamation lawsuit, in Cubby, Inc. v. CompuServe, Inc.,4 decided by the U.S. District Court for the Southern District of New York. CompuServe provided an online service called the "Journalism Forum." CompuServe contracted with Cameron Communications, Inc. ("CCI"), an independent organization, for the management of the content appearing on the Journalism Forum. The Journalism Forum offered a newsletter called "Rumorville USA" pursuant to an agreement between CCI and a third-party publisher.

The plaintiff, an electronic newsletter, sued CompuServe for allegedly defamatory statements placed on Rumorville USA. The court, in granting CompuServe's motion for summary judgment, held that CompuServe was functioning like an electronic news distributor rather than as a publisher because it had no opportunity to review the contents of Rumorville USA before it was uploaded into CompuServe's computer banks. The court held that CompuServe, as a distributor, could not be liable for the contents published by the independent contractor, CCI, as long as it did not know or have reason to know of the allegedly defamatory statements.

In the New York case of Stratton Oakmont, Inc. v. Prodigy Servs. Co.,5 in contrast, Prodigy was held liable for allegedly defamatory statements posted by third-party users that appeared on one of its computer bulletin boards, called "Money Talk." A bulletin board leader, who participated in the discussions, managed Money Talk. The plaintiff, a securities investment bank, contended that an unidentified user of Money Talk posted statements on the bulletin board accusing the plaintiff of committing criminal fraud surrounding an initial public offering.

Prodigy, in reliance on Cubby, Inc., responded that it could not be liable for defamatory messages posted by its users because Money Talk was managed by an independent contractor who was not an agent and CompuServe was not a publisher. However, the court disagreed and held that Prodigy, unlike CompuServe, was acting as a publisher and that the board leader was its agent. The court distinguished this case from the holding in Cubby, Inc. by contending that Prodigy held itself out to the public and its members as exercising editorial control over the content of messages posted on its bulletin boards. Furthermore, Prodigy established "content guidelines," which it enforced with automatic screening software.6

In the Fourth Circuit case of Zeran v. America Online, Inc.,7 an unidentified user posted messages on an America Online bulletin board claiming to advertise for the sale of t-shirts, bumper stickers, and key chains containing offensive and tasteless slogans surrounding the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. Interested purchasers were directed to call the plaintiff, who had not posted the messages, at his home telephone number. The plaintiff, who was subsequently inundated with death threats and abusive phone calls, sued America Online. The plaintiff's theory was that America Online was negligent in failing to respond adequately to the false notices after being made aware of their malicious and fraudulent nature. In effect, the plaintiff argued that America Online was a distributor, and as such, was liable for the distribution of material which it knew or should have known was defamatory in nature.8

The Fourth Circuit relied on § 230(c) of the CDA, entitled "Protection For 'Good Samaritan' Blocking and Screening of Offensive Material." Congress had enacted the CDA as a response to the Stratton Oakmont, Inc. decision. Specifically, the CDA was designed to prevent "the specter of tort liability" from chilling free speech and to encourage online service providers to self-regulate by removing the disincentives. The Fourth Circuit held that § 230 immunized computer service providers from liability for information originating from third parties. As a result, America Online was not liable, despite having notice of the allegedly defamatory material and failing to screen for similar unlawful messages thereafter. The Fourth Circuit reasoned that subjecting a computer service provider to liability, even on notice of the existence of the defamatory content, would pose too high a burden, amount to censorship, and cause "an obvious chilling effect."9

Impact of the CDA

Prior to the enactment of the CDA, courts attempted to apply traditional theories of publisher/republisher liability to online service providers. Consequently, online service providers who tried to regulate content were labeled as publishers and, as a result, they could be sued for defamatory content appearing on their networks from third parties. Even if a network failed to exercise editorial control, it could still be held liable as a distributor for the distribution of material that it knew or should have known was of defamatory character.

"Despite recent case law
and the passage of the CDA,
the liability for online
defamation or privacy
violations is still uncertain."

Now, with the passage of § 230 of the CDA, it would appear that online service providers and users of these services will no longer be penalized because they have taken measures to restrict access to objectionable material. Furthermore, § 230 (c)(2) would seem to immunize providers and users from liability from persons whose material is screened or blocked However, the language of § 230 is vague as to the scope of immunity, and to date Zeran is the only published decision applying the CDA to an online service provider.10 Due to the rapid proliferation of new communication technologies, statutory ambiguity, and lack of precedent, it is difficult to predict how Colorado courts will resolve online defamation and privacy disputes. However, examining how courts in Colorado have interpreted and applied traditional legal principals involving...