Prodigy To Appeal State Court Decision p. 46

By: William Webb Ruling said the online services company acted substantially
as publisher when it allowed an accusatory message
to appear on its electronic bulletin board sp.

PRODIGY WILL APPEAL a state court decision holding the company liable for the content of its subscribers' electronic messages.
New York Supreme Court Judge Stuart L. Ain, in Mineola, ruled that Prodigy acted substantially as a publisher in allowing a bulletin board message that accused the investment banking firm Stratton Oakmont Inc. of criminal conduct.
The decision clears the way for a $200 million libel suit filed by Stratton Oakmont against Prodigy.
However, according to Brian Ek, director of communication at Prodigy, the lawsuit is "incidental" to the more fundamental issue of who is responsible legally for material posted on computer bulletin boards.
Prodigy, seeking guidelines under which the company can operate without threat of lawsuit, is looking for a higher-level decision than the state court to act as a precedent, Ek said.
Ain agreed with the operating principle of most online bulletin board and chat groups, which exercise little or no control over the content of subscribers' messages.
"Computer bulletin boards should generally be regarded in the same context as bookstores, libraries and network affiliates," he wrote. That is, they generally cannot be held liable for what they disseminate.
But the judge differentiated Prodigy from services such as CompuServe, which won a precedent-setting 1991 decision that limited the right to sue for online defamation.
He said Prodigy's decision to bar messages that contain obscenity, slurs and personal attacks constituted editorial control. Prodigy's software automatically returns messages that contain obscenities, and an alert button lets users call a system operator to look over other messages that might be offensive.
"Prodigy's conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than CompuServe and other computer networks that make no such choice," wrote Ain.
Is any form of editorial control too much?
"We believe very strongly that we were penalized for acting responsibly," said Ek. "Newspapers are facing the same thing if they offer bulletin boards or chat, which most of them do."
Other online services screen for obscenities but have not publicized their policy as much as Prodigy has.
Ain cited Prodigy's 1990 marketing copy: "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."
In fact, Prodigy does less, according to Ek, because the service takes no responsibility for factual content and never claimed such responsibility.
Prodigy now says it has abandoned those early claims that compared it to a newspaper.
Despite the judge's argument to the contrary, the decision potentially impacts every online service, including Prodigy's competitors, CompuServe and America Online.
"They are alarmed by it, they are in full support of our appeal, and you will see them issue a press release very soon to that effect," Ek said.
Speaking for a newspaper industry with dozens of online bulletin boards, the Newspaper Association of America (NAA) recently issued a warning to its members.
A "Cyberspace Liability Memo" from legal affairs representative Ren? P. Milam stated: "The court's decision is troublesome since it indicates a basic misunderstanding of how online service providers operate their bulletin boards. Most, if not all service providers, use tools (such as board leaders or forum hosts, content guidelines, etc.) similar to those used by Prodigy to delete offensive material from their bulletin boards."
Milam characterized her memo as an alert rather than an NAA official position.
NAA has taken no formal position on the case, she said, since this is a state trial court decision, but has spoken with representatives from Prodigy and will follow the appeal.
"The ruling, if it stands, puts the online operators ? I think all of us ? between a rock and hard place," Ek said.
Checking every bulletin board note for content is impossible because of the sheer volume of messages, Prodigy claims.
"That is the functional equivalent of taking a live hand grenade, sticking it in my pocket, and saying, 'By the way, hold onto it, you better not let go,' " Ek said, "because all it takes is once, and with 60,000 new bulletin board notes coming in every day, something's going to happen. It's not even a question."
This scheme, unworkable to begin with, would cost so much money that subscribers could not afford to pay for it, Ek said.
The other alternative is to dismiss all board managers, to remove all controls, and to make bulletin board services like Internet newsgroups that are uncontrolled and uncensored. But there is a demand for the minimal controls that provide for civil discourse, Ek said.
Ironically, the Exon Amendment to the telecom bill currently being debated in Congress, which has been widely derided by civil rights groups as an unconstitutional infringement of free speech, actually limits the liability of online companies, Ek said.
Also ironic is that Prodigy users howled at early attempts to screen for obscenities as being acts of censorship.
Ek admitted there were complaints. Prodigy at first used human judgment, messages were read and screened by humans, and there were "inconsistencies," Ek said.
What's more, getting a message online took 21 hours, which led to more complaints than did the censorship issue.
The current system uses a "dumb machine" to search for naughty words. Having an automated system and clearly defined ground rules has eliminated the complaints, Ek said.
No complaints?
"Not one," Ek said, and then amended: "No actually, there was, because we initially did not have the ability to selectively change the words that were in the scanner based on the board, and we had one lady who was very upset in the 'pets' board because we would not let her use the word 'bitch.' "
"It's a thorny issue," Ek said. "There are no easy answers."