COMPUTER NETWORKS: ACCESS, TORT LIABILITY,
11/28/94 Sandra B. McCray
THE FIRST AMENDMENT, AND
THE PUBLIC FORUM DOCTRINE
I. INFORMATION TECHNOLOGIES AND ELECTRONIC NETWORKS: OVERVIEW OF PLAYERS AND LEGAL ISSUES
A. Categories of Players: Note that a player may fall into more than one category
1. Creators or originators of content.
2. Moderators of electronic bulletin boards.
3. Distributors of or conduits for information.
4. Consumers (users).
B. Some Legal Issues
1. What statutory and common law rights do network users -- suppliers and consumers of information -- have to nondiscriminatory access to networks?
2. Under what circumstances is a network provider liable for defamation, invasion of privacy, or other torts because of the content of the information exchanged or stored on its network?
3. What is the impact of the First Amendment? Does the First Amendment protect access to the network? Does the First Amendment entitle a network operator to control what messages are carried?
C. Note that the Answer(s) to the Question of Legal Liability May Depend on the Category(ies) of the Player.
II. REQUIREMENT OF UNIVERSAL NONDISCRIMINATORY ACCESS (NOT CONSTITUTIONALLY BASED).
A. Requirement of universal nondiscriminatory access based on Statutes, Regulations, and Common Law (ie. not the First Amendment. See discussion below for requirements based on First Amendment).
1. The Concept of Common Carrier.
a. Under the traditional common law definition an entity is a common carrier if it:
* provides the services for the purpose of generating revenue directly,
* is primarily engaged in the business in question, and
* conducts the service on a regular basis.
b. Telephone and Telegraph companies are deemed common carriers under the 1934 Communications Act and FCC regulations.
2. Legal Liabilities of Common Carriers.
a. Because common carrier status requires the entity to carry all messages without editing, a common carrier is not legally liable for the content of the message transmitted.
b. A common carrier is, in other words, merely a conduit for messages generated by third parties.
B. Network Operators as Distributors of or Conduits for Information.
1. Some Legal commentators and Courts Have Used the Common Carrier Concept by Analogy when dealing with Network Operators who act as a conduit for information generated by others (see discussion of Cubby case below.)
2. Thus, although BCN does not fit the traditional definition of a common carrier, a court might find that in its role as distributor or conduit for information generated by others, BCN is like a common carrier with a duty to allow universal, nondiscriminatory access to all suppliers and consumers of information and a concomitant privilege from liability for the content of that information.
C. Permissible Limitations/Disclaimers.
1. Contractual limitations. Even if a network or bulletin board operator is deemed to have common carrier-like duties, the operator may be able to specify, by contract, that it only wants a particular type of message or information on its system. Discrimination within a defined subject matter may, however, create problems.
2. Moreover, an operator can post electronic notices to make clear that it does not necessarily endorse the speech it is compelled to carry.
III. TORT LIABILITY: DAMAGE TO REPUTATION (LIBEL), PRIVACY, OR INTELLECTUAL PROPERTY.
1. To recover for damages for libel, the plaintiff must:
a. show that the statements in question are false and defamatory,
b. "publish" the statements in question (i.e., the defendant intentionally or negligently communicated the allegedly defamatory statement(s) to a third person.
c. "republish" the statements in question. A defendant who repeats the defamatory statement will be subject to liability as a republisher if the plaintiff shows that the defendant knew or should have known of the defamatory statement(s).
2. Knowledge or imputation of knowledge may be found when the defendant exercises editorial control over the contents of the publication. (see discussion of Cubby case below).
3. Application of Libel Standards to a Network.
a. A message originator that distributes a defamatory message over a computer network may be liable for the tort of libel. Similar liability may exist for the operator of a monitored electronic bulletin board.
b. Even if a computer network operator is deemed a republisher of the alleged defamatory statement(s), however, the operator will probably not be liable for defamatory statements transmitted over a network unless the operator has exercised content control over the messages or negligently failed to remove the offending message after learning that the message is false and defamatory.
c. Note that, even in the above case, a court might find no liability against the network operator if:
* it is not technologically feasible to exclude the originator,
* the network operator has taken reasonable steps to notify customers that it does not assert the truthfulness or reliability of the information, or
* if the network operator has by contractual language placed the duty on the information provider to verify the accuracy and legality of the information provided and to accept liability for any actionable defamation.
B. Invasion of Privacy.
1. Circumstances under which a network service provider may face the invasion of privacy liability.
a. misrouting a private message to a recipient not intended by the sender of the message,
b. reading the contents of a message intended to be private,
c. making it possible for a third party to obtain undesired access to private messages, or
d. making it possible for a third party to disseminate private facts or information obtained through intrusion.
2. In most cases, a network provider may able to escape liability for the above latter two acts if it makes it clear that messages are subject to access by people other than the addressee.
C. Copyright Infringement.
1. The Copyright Act gives a copyright owner the exclusive right to distribute copies or the copyrighted work to the public. In 1978, federal statutory copyright law extended the protection to unpublished works.
a. The Act does not protect ideas, only their expression.
b. The Act does not protect facts, but it does protect original compilations of facts.
2. Copyright protection for both published and unpublished works is subject to the privilege of "fair use."
a. Fair use is the right to make a limited use of another's copyright without the consent of the copyright owner.
b. The statute lists 4 factors that a court must examine in order to determine whether the alleged violation falls within the fair use exception:
* the purpose and character of the use, including whether the use was of a commercial nature or for nonprofit or educational purposes,
* the nature of the copyrighted work (generally, literary works of fiction or artistic works are afforded greater protection from fair use than are works of fact),
* the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
* the effect of the use upon the potential market for or value of the copyrighted work.
3. A network or bulletin board operator may be able to protect itself from liability for copyright violation by placing language in its contract with information providers, see summary below.
V. THE CUBBY CASE (Cubby v. CompuServe, 776 F. Supp. 135, SDNY 1991)
1. Plaintiff Cubby Inc. was the developer of "Skuttlebut," a computer database designed to publish and distribute electronically news and gossip in the television news and radio industries.
2. Defendant CompuServe was a developer and provider of computer-related products and services, including an on-line general information service that subscribers could access from a personal computer or terminal. In return for usage fees, subscribers had access to information sources and special interest forums consisting of electronic bulletin boards, interactive on-line conferences, and topical databases.
3. Subscribers to Compuserve could access Skuttlebut as well as "Rumorville," a daily newsletter published by DFA that provided reports about broadcast journalism and journalists.
4. Compuserve's contract with DFA provided that DFA "accepts total responsibility for the contents" of "Rumorville." Moreover, CompuServe received no part of any fees that DFA charged for access to "Rumorville," nor did CompuServe compensate DFA for making "Rumorville" available to its subscribers.
5. Skuttlebut intended to compete with Rumorville. Skuttlebut claimed that Rumorville published false and defamatory statements relating to Skuttlebut, including statements that individuals at Skuttlebut gained access to information first published by Rumorville.
6. Skuttlebut sued CompuServe and the publisher of Rumorville for libel.
1. Was CompuServe liable for the alleged libel of Skuttlebut, either as a republisher of the statement or as an agent of Rumorville?
2. CompuServe defended on the grounds that it was a distributor of Rumorville, as opposed to a publisher. Therefore, CompuServe could not be held liable on the libel claim because it neither knew nor had reason to know of the allegedly defamatory statements.
C. Court Finding: Was Compuserve liable for the alleged libel?
1. Liability as a Republisher.
a. A republisher must have knowledge of the contents of a publication before liability can be imposed for distributing that publication.
b. CompuServe had no more editorial control over the publication of "Rumorville" than does a public library, book store, or newsstand.
c. Skuttlebut did not set forth any facts showing that CompuServe knew or should have known of the allegedly defamatory statements.
2. Vicarious Liability as Agent of Rumorville.
a. Skuttlebut also claimed that CompuServe should be held vicariously liable for the allegedly defamatory statements based on an agency relationship with "Rumorville."
b. CompuServe maintains that it simply contracted with the publisher of "Rumorville" to manage the forum, under the contract the publisher of Rumorville agree to "manage, review, create, delete, edit, and otherwise control the contents of the [forum] in accordance with editorial and technical standards and conventions of style as established by CompuServe."
4. Judgment in favor of CompuServe. The court found that CompuServe was not liable for the alleged defamatory statements as a republisher because no facts were shown that CompuServe knew or should have known of the statements, and that CompuServe was not vicariously liable because the publisher of Rumorville was an independent contractor and not an agent of CompuServe. CompuServe had the right under the contract to remove text from its system for noncompliance with its standards, but that right was not sufficient to turn the relationship into one of agent/principal.
5. Note that this is a lower court case and so beware of placing too much reliance on the analysis and holding. It is, however, pretty much all we have for now.
IV. THE IMPACT OF THE FIRST AMENDMENT
A. Philosophical Underpinnings.
1. The First Amendment provides that: "Congress shall make no law ... abridging the freedom of speech,....
2. The First Amendment is generally viewed as protecting a free interchange in the marketplace of ideas.
B. Threshold Issues.
1. The First Amendment only applies if "state action" exists. State action exists when:
* the government or its agents act,
* a private entity performs a traditionally governmental function,
* a private entity highly regulated by the government performs an act mandated by a regulatory agency.
2. Because BCN is operated by and funded in large part by the University of Colorado, the state action requirement is probably met.
C. Practical Effect.
1. When used as a sword, the First Amendment protects access to the channels necessary to get a message to its intended audience.
2. When used as a shield, the First Amendment entitles a publisher, network owner/operator, channel owner to control what messages will be carried.
D. Overview of First Amendment Protection
1. In general, the level of protection afforded to speech depends on the content of the speech involved. For example, commercial speech, obscenity, non-obscene child pornography, and defamatory speech all receive less or no First Amendment protection because of their content.
2. In connection with electronic media, however, courts have focused on the medium of communication.
a. print publishers such as newspapers receive the highest level of First Amendment protection; or in other words, courts tolerate virtually no government regulation of our print media (shield).
b. Broadcast, on the other hand, receives the lowest level of First Amendment protection. Thus, courts have upheld government regulations requiring broadcasters to allow a right of reply on the grounds that the electromagnetic spectrum is a scarce public resource and some regulation is needed to preserve the marketplace of ideas (sword).
c. Cable is somewhere in the middle. Courts have allowed government regulations that require cable companies to carry certain local broadcast programs, although such requirements reduce the number of channels that cable companies can control.
E. Application of First Amendment to Electronic Networks: Effect on Equal Access.
1. Some Possible Examples
* private network operators who act only as conduits or distributor rather than editors or publishers will likely be controlled by principles other than the First Amendment. That is, to the extent that the network operator/distributor is treated as a common carrier, it will already have equal access duties and will have limited or no liability for the content of the message it carries.
* private program and service providers (originators of content) will likely have First Amendment protection restricting government regulation of the content of their program. Along with editorial control, however, goes greater tort liability for libel, copyright infringement, etc.
* Consumers. Interactivity changes the consumer from a passive recipient of information into a user with an interest in disseminating a message to other members of the public. Thus, a court might find that the First Amendment is a sword ensuring access when state action is present.
VI. THE SPECIAL CASE OF THE PUBLIC FORUM DOCTRINE
A. Traditional Doctrine
1. Began as a limit on the power of the state to prohibit expression on public property.
2. Traditional public fora include only streets, sidewalks, and parks.
3. The First Amendment requires the state to permit expression on traditional public fora, subject only to time, place, and manner restrictions.
B. Modern Doctrine -- The Perry case. (Perry Education Ass'n v. Perry Local Educators' Ass'n., 460 US 37, 1983).
1. Facts: School administrators permitted the authorized teacher union to use the school mailing system to communicate with its members. The administration also allowed personal messages and messages from various student groups into the system. A competing union demanded access to the mail boxes for distribution of its literature, claiming that the exclusive access regulation violated the First Amendment.
2. The U.S. Supreme Court articulated a 3-category classification scheme for determining when public property constitutes a public forum and how much First Amendment protection it should receive. Those categories are:
* Traditional public fora -- streets, sidewalks, parks. Only time, place, manner restrictions allowed.
* Limited public fora -- state-owned, -operated or -controlled property that the state has designated for the public to use for expressive activity. The state actor must maintain the same First Amendment standards as long as the forum remains open to the public -- i.e., time, place, manner restrictions only. But, the state actor is free to close the forum.
* All other state-controlled property. The state can impose reasonable regulations on public property not traditionally, or by designation, open to expression if those regulations are designed to further the purposes for which the state uses the property.
C. The Cornelius Case (Cornelius v. NAACP Legal Defense & Education Fund, 473 US 788, 1985).
1. Facts. Government regulations restricted solicitation of charitable contributions from federal employees in the federal workplace to nonprofit charities and specifically excluded political action groups and other organizations attempting to influence public policy or the political process. Several lobbying groups claimed that the restriction constituted a violation of their First Amendment rights. The groups claimed that the federal charitable contribution campaign in the federal workplace was a limited public forum.
2. Decision. The federal charitable contribution campaign was not a limited public forum because the government never intended to open the federal workplace to all fundraising or soliciting activities without restriction. Moreover, the federal workplace was generally unsuitable for unrestricted expressive activity.
3. The Cornelius case appears to stand for the proposition that public property becomes a limited public forum only when the state expressly intends to open a nonpublic forum for expressive activity and that activity is compatible with the primary use of the property.
D. Applying the Doctrines to Electronic Fora.
1. Only public electronic fora -- state-owned, operated or sponsored -- meet the state action threshold. A private electronic forum, such as Prodigy, can place restrictions on both users and message content.
2. A university sponsored, owned, or operated electronic forum may become a designated limited public forum for computer-based expression. If so, the operator could regulate the forum only through time, place, and manner restrictions, but could not otherwise restrict access, short of closing the forum. (recall that obscene speech, however, can be prohibited because it is not protected by the First Amendment).
VII. SUMMARY (OR WHAT IS THE BOTTOM LINE HERE?)
A. BCN as Limited Public Forum.
* Because CU is the operator and sponsor (and owner?) of the network, BCN probably meets the state action requirement for First Amendment purposes.
* Thus, BCN may well be viewed as a limited public forum with a duty to allow nondiscriminatory access to information providers who fit within the categories of service and accept the standards defined by BCN.
* Despite characterization as a limited public forum, BCN is free to close the network when it chooses.
2. Nondiscriminatory Access.
* BCN should have standards that apply to all information providers -- e.g., that such providers promise to provide accurate and current information.
* BCN should stay away from granting individually tailored and/or exclusive contracts.
B. BCN as Distributor of Information Provided by Others.
1. Tort Liability for Information Provided by Others and Liability for Copyright Infringement by Information Providers, etc.
* BCN can probably limit its liability by careful use of contract terms.
* See below for examples.
C. BCN as Operator of Electronic Bulletin Boards.
1. If BCN decides to add electronic bulletin boards, it can probably limit its liability for torts and copyright infringement by third parties through careful use of contract terms.
* Again, see below.
D. BCN as Content Originator/Provider.
1. If BCN decided to become a content provider as well as a distributor of content provided by others, it could incur liability for torts, such as defamation and copyright infringement (if it guesses wrong on "fair use.")
E. Some Contract Terms to Limit Liability.
1. Copyrighted Materials.
* "You may not submit to BCN any information protected by copyright of a third party without first obtaining permission of the copyright owner. You are responsible for any software program, information, message, or other material that you submit, upload or post on BCN. Submission of content to BCN is done at your own risk, and you, not BCN are liable for any damage resulting from any infringement of copyrights or any other harm."
2. Information and Opinions expressed on BCN service.
* "BCN does not guarantee the accuracy or completeness of any information content, nor its merchantability or fitness for any particular purpose. Under no circumstances will BCN be liable for any loss or damage caused by a users reliance on information obtained on the BCN service."
3. Tort Liability.
* "The Information Provider to BCN shall defend, indemnify, and hold harmless BCN against liabilities arising out of (i) any defamatory or illegal, or allegedly defamatory or allegedly illegal material place on the BCN service."
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