It has been established that Barack Obama’s official campaign site exercises editorial control over the content of my.barackobama.com, and is capable of finding and removing “offensive” and “disrespectful” material within two days. Does this exercise of editorial control create not only a moral duty to remove the anti-Semitic, racist, and misogynist hate speech that pervades my.barackobama.com, but also a legal duty to remove libelous material? We phrase this as a question because we are not qualified to give legal advice. Suffice to say, however, that numerous comments at my.barackobama.com libel an identifiable entity with false accusations of criminal activity–and we have E-mailed the page in question to the organization in question for review by its attorneys. [We are not, by the way, going to give the libel any “legs” by quoting it here even for the purpose of condemnation.]
We cite the example of Stratton Oakmont, Inc. v. Prodigy Services Co., a libel suit in which the plaintiff sued Prodigy over defamatory material that appeared on one of its bulletin boards.
- Hon. Stuart L. Ain, Justice[I]t is ordered that this motion by Plaintiffs for partial summary judgment against Defendant PRODIGY SERVICE COMPANY (”PRODIGY”) is granted and this Court determines, as a matter of law, the following two disputed issues as follows:
(i) that PRODIGY was a “publisher” of statements concerning Plaintiffs on its “Money Talk” computer bulletin board for the purposes of Plaintiffs’ libel claims…
PRODIGY commenced operations in 1990. Plaintiffs base their claims that PRODIGY is a publisher in large measure on PRODIGY’s stated policy, starting in 1990, that it was a family oriented computer network. In various national newspaper articles written by Geoffrey Moore, PRODIGY’s Director of Market Programs and Communications, 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. In one article PRODIGY stated: “We make no apology for pursuing a value system that reflects the culture of the millions of American families we aspire to serve. Certainly no responsible newspaper does less when it carries the type of advertising it published, the letters it prints, the degree of nudity and unsupported gossip its editors tolerate.”
…Plaintiffs further rely upon the following additional evidence in support of their claim that PRODIGY is a publisher:
(A) promulgation of “content guidelines” (the “Guidelines” found at Plaintiff’s Exhibit F) in which, inter alia, users are requested to refrain from posting notes that are “insulting” and are advised that “notes that harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community, will be removed when brought to PRODIGY’s attention”; the Guidelines all expressly state that although “Prodigy is committed to open debate and discussion on the bulletin boards, . . . this doesn’t mean that ‘anything goes’”;
(B) use of a software screening program which automatically prescreens all bulletin board postings for offensive language;
(C) the use of Board Leaders such as Epstein whose duties include enforcement of the Guidelines, according to Jennifer Ambrozek, the Manager of PRODIGY’s bulletin boards and the person at Prodigy responsible for supervising the Board Leaders, and
(D) testimony by Epstein as to a tool for Board Leaders known as an “emergency delete function” pursuant to which a Board Leader could remove a note and send a previously prepared message of explanation “ranging from solicitation, bad advice, insulting, wrong topic, off topic, bad taste, etcetera.”
A finding that PRODIGY is a publisher is the first hurdle for Plaintiffs to overcome in pursuit of their defamation claims because one who repeats or otherwise republishes a libel is subject to liability as if he had originally published it. …In short, the critical issue to be determined by this Court is whether the foregoing evidence established a prime facie case that PRODIGY exercised sufficient editorial control over its computer bulletin boards to render it a publisher with the same responsibilities as a newspaper.
Again, PRODIGY insists that its former policy of manually reviewing all messages prior to posting was changed “long before the messages complained of by Plaintiffs were posted”. However, no documentation or detailed explanation of such a change, and the dissemination of news of such a change, has been submitted. In addition, PRODIGY argues that in terms of sheer volume–currently 60,000 messages a day are posted on PRODIGY bulletin boards–manual review of messages is not feasible. While PRODIGY admits that Board Leaders may remove messages that violate its Guidelines, it claims in conclusory manner that Board Leaders do not function as “editors”. Furthermore, PRODIGY argues generally that this Court should not decide issues that can directly impact this developing communications medium without the benefit of a full record, although it fails to describe what further facts remain to be developed on this issue of whether it is a publisher.
…The key distinction between CompuServe and PRODIGY is two fold. First, PRODIGY held itself out to the public and its members as controlling the content of its computer bulletin boards. Second, PRODIGY implemented this control through its automatic software screening program, and the Guidelines which Board Leaders are required to enforce. By actively utilizing technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and “bad taste”, for example, PRODIGY is clearly making decisions as to content, and such decisions constitute editorial control. (Id.) That such control is not complete and is enforced both as early as the notes arrive and as late as a complaint is made, does not minimize or eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards. Based on the foregoing, this Court is compelled to conclude that for the purposes of Plaintiffs’ claims in the action, PRODIGY is a publisher rather than a distributor.
The key phrase here is “That such control is not complete and is enforced both as early as the notes arrive and as late as a complaint is made, does not minimize or eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards.” This is also characteristic of my.barackobama.com, where comments and blogs can be removed almost as quickly as they are posted, or only after another member files a complaint. In addition, per the site’s terms of service,
- You may not post or otherwise make available on our Website any content that is illegal, obscene, threatening, defamatory, or otherwise injurious to third parties. You may not impersonate any person or entity, or otherwise mislead as to the origin of your content. Further, you may not make use of our services to forge e-mail headers, or send bulk unsolicited e-mail messages. We have the right, but not the obligation, to monitor the content posted on our Website to determine compliance with our Terms of Service and/or to satisfy any law, regulation or government request. We have the right, in our sole discretion, to edit, refuse to post or remove any material submitted to or posted on our Website including, but not limited to, material that is unlawful, threatening, libelous, defamatory, obscene, pornographic, graphic, or otherwise objectionable.
We are not sure whether the Obama campaign does not have the obligation to monitor content for libel, and we would certainly welcome commentary from attorneys who are in fact qualified to give legal advice. Stratton Oakmont, Inc. v. Prodigy Services Co. suggests, however, that the fact that the Obama campaign has (and exercises) the right to “edit, refuse to post or remove any material submitted to or posted on our Website” does in fact create an affirmative duty to censor libelous entries.
However, Congress enacted legislation that reduces the legal exposure of Internet services for third-party content such as might be posted at forums like my.barackobama.com. (This does not necessarily change their moral responsibility.)
Section 230 of the Communications Decency Act (CDA) offers broad protection for providers and users of interactive computer services against liability for defamation and other content-based claims when a third-party provides the information. Although providers and users of interactive computer services (ICSs) are permitted to exercise some editorial control while still avoiding legal liability, at some point, such editing may transform the provider or user of the ICS into an information content provider and deprive them of § 230 immunity. The key issue is where the threshold between permissible and impermissible editorial control lies.
- DO STUDENT EDITORS AT PUBLIC UNIVERSITIES SHED THEIR FIRST AMENDMENT RIGHTS IN CYBERSPACE?
by Joey Senat
School of Journalism and Mass Communication
The University of North Carolina at Chapel HillIn Milliner v. Turner, Southern University of New Orleans faculty members sued the student-run newspaper after it called them “racists” and “proven fools.” The Louisiana Court of Appeals ruled that the university was not liable because it did not have the authority to censor the newspaper. “We find the First Amendment . . . would bar [the university] from exercising anything but advisory control over the paper, therefore, exempting the university from any liability or responsibility.”
In Mazart v. State, the Pipe Dream, the student newspaper at the State University of New York at Binghampton, ran a letter to the editor identifying the two plaintiffs “as members of the gay community.” The New York Court of Claims found that the publication constituted libel per se, and that the editors “acted in a grossly irresponsible manner.” However, the court concluded:
“The court recognizes that the Pipe Dream and its staff may be incapable of compensating claimants for any damages flowing from the libel. But, in light of the University’s eschewing control, editorial or otherwise, over the paper and the constitutionally imposed barriers to the exercise by the University of any editorial control over the newspaper, the court must reluctantly conclude that the relationship of the University and the Pipe Dream is not such as would warrant the imposition of vicarious liability on the State for defamatory material appearing in the student newspaper.”
In these cases, it was the specific inability of the universities to exercise editorial control that immunized them from liability for material in their student newspapers. Furthermore, the defamation in question (accusations of racism and of being gay) is not, as far as we know, automatically libel. Libel per se consists of (1) a false accusation of criminal activity, as posted at my.barackobama.com, (2) a false accusation that someone is incompetent in his profession (e.g. calling a doctor a quack), (3) a false accusation that someone has a “loathsome disease” (presumably venereal disease or AIDS), and (4) a false accusation that a woman is unchaste. The latter does not apply to men, presumably because the idea that a man is sleeping around is not as offensive as that of a woman sleeping around. On the other hand, if a man could show that such a false accusation had damaged his marriage, he might have a case–but he would not automatically have a case. (Again, we are not qualified to give legal advice, and this is what we remember from a course on business law.)
- MEMBER ACKNOWLEDGES AND AGREES THAT RECRUITERSFORUM DOES NOT ENGAGE IN MONITORING OR EXERCISING EDITORIAL CONTROL OVER ANY MESSAGES SENT OVER THE SERVICE AND THAT RECRUITERSFORUM SHALL NOT BE LIABLE FOR FAILURE TO SO MONITOR OR EDIT. Member acknowledges and agrees that RecruitersForum neither endorses the contents of any Member communications nor assumes responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby.
Other Internet service providers have similar explicit disclaimers of exercise of editorial control.
In summary, we are not qualified to judge whether Stratton Oakmont, Inc. v. Prodigy Services Co. means that Barack Obama’s official campaign is liable for the libelous material that has been posted there, or whether Section 230 of the Communications Decency Act gives it some protection. We would welcome the opinions of attorneys who can give professional opinions. Suffice to say, however, that it has been established that:
(1) The Obama campaign exercises editorial control over the content of my.barackobama.com
(2) Libelous material (false accusation of criminal activity) has been posted to my.barackobama.com