Is AOL responsible for its hip shooter’s bullets?

Is AOL responsible for its hip shooter’s bullets?

Hearst, Andrew

A few years ago, experts were predicting that the wild nature of the Internet would lead to a huge increase in libel cases. In fact, few online libel cases have been filed so far. That doesn’t mean that they don’t exist, however, or that the issues they raise don’t bear watching.

The case to watch now was filed in August by Clinton communications adviser Sidney Blumenthal, a former New Yorker and New Republic writer.

Blumenthal sued Matt Drudge, the Internet tipster who puts out a popular news-andgossip service, via e-mail, called The Drudge Report (www.drudgereport.com). Blumenthal also sued America Online, which began paying Drudge in July for the right to carry his dispatches. Drudge has raised many an eyebrow with his boast in Time that his mostly Hollywood- and Washington-focused reports are “80 percent accurate.” AOL presumably knew something about his accuracy level when it brought him on board, but it is arguing that it should not be held liable for his errors, and some free-speech advocates agree. In August, The Drudge Report quoted unnamed sources as saying that Blumenthal is a wife-beater. “New White House recruit Sidney Blumenthal has a spousal abuse past that has been effectively covered up,” Drudge wrote on August 10, quoting “top GOP operatives” who told him “there are court records” to prove it.

But – whoops! – those records apparently don’t exist. Drudge produced no evidence to lend credence to the allegation. And less than thirty hours later, after Blumenthal threatened a lawsuit, he issued a terse retraction via e-mail to Drudge Report subscribers, which he told Newsweek number 85,000; the retraction also appeared in The Drudge Report section of AOL. The Washington Post quoted Drudge that day as saying that Republican but one important precedent that will likely inform the decision is a 1991 case, Cubby, Inc. v. CompuServe. Cubby, Inc., publisher of an electronic newsletter, claimed that it had been libeled in dispatches to a special-interest forum on CompuServe, and sued both the forum host and CompuServe. Under traditional libel law, publishers of defamatory statements can be held just as liable for those statements as those who wrote them. The question, then, was whether CompuServe was more like a publisher — responsible for content in the way a newspaper or TV company is responsible – or a common carrier, such as a telephone company, which is not responsible for what Aunt Mary says through the phone lines about Uncle Irv.

The judge in the Cubby case it never went to a jury – leaned toward the latter interpretation, but he envisioned a different model. He ruled that CompuServe was more like a bookstore than a publisher. In a 1959 case, Smith v. California, the Supreme Court established that because bookstores can’t possibly screen every book they sell, they have substantial protection against libel suits. (A 1995 case involving Prodigy went the other way, but is considered by many experts to be based on a serious misreading of Smith and Cubby.)

So in the Blumenthal case, is AOL more like a publisher or a bookstore? One difference from the Cubby case is that AOL pays Drudge for the right to carry The Drudge Report. No evidence has emerged so far that AOL employees reviewed Drudge’s Blumenthal report before it went up on the network. Still, it could be argued – and apparently will be – that Drudge is an AOL employee.

“This is a case where AOL hired Drudge – that’s their word,” says Blumenthal’s attorney, William A. McDaniel, Jr. “They hired him. They issued a press release on July 15 in which they said that he would appeal to their readers who, as they put it, crave instant gossip. . . and they quoted Drudge as saying, ‘I print what other news organizations won’t touch.’ The reason they won’t touch it is because it’s libelous. Once AOL says that and then they pay him to do it, then it seems to me that this is not a situation like that in the CompuServe case.”

Others fear that such an argument, if successful, will reduce online freedom of speech. “The only way you could have freedom of speech on these services is if you don’t force the provider to be constantly policing what individuals say. And this is essentially what Blumenthal is seeking,” says Mike Godwin, the staff counsel at the Electronic Frontier Foundation, which advocates free speech online, and author of the coming book Cyber Rights.

The issue of whether Internet service providers should be held accountable for statements made on their systems was a key element of last year’s debate over the Communications Decency Act, or CDA.

The law was ultimately declared unconstitutional by the U.S. Supreme Court in June, but conservatives are drafting new legislation that they hope will revive a number of its elements. The CDA, which was originally attached to last year’s massive telecommunications bill, would have held Internet service providers liable for pornography and other obscene material on their systems. Opponents argue – as they do about the Blumenthal suit – that such a requirement would force providers to monitor everything on their systems, which would lead to de facto censorship.

“The fear is not that online publications will be chilled directly,” says Godwin. “The fear is that by putting the providers in harm’s way, they are going to start policing [their content providers]. And that will be quite chilling, because their decisions won’t be based on any court cases, they’ll be based on some in-house counsel’s most conservative judgment about how to diminish the exposure.”

Hearst (hearst@echonyc.com) is editor of Off the Rack, a section of The Electronic Newsstand (www.enews.com) devoted to media commentary.

Copyright Columbia University, Graduate School of Journalism Nov/Dec 1997

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