IP: Cybertimes story on Drudge ruling

[Dave Farber <farber () cis upenn edu>]

April 24, 1998




              In Drudge Case, AOL
              Finds Shelter in
              Decency Act


              By JERI CLAUSING


                       WASHINGTON - A federal
                       judge's decision to dismiss a
                       libel suit against America
              Online for transmitting an erroneous
              gossip column about a White House
              aide is the third such case the online
              service provider has won under
              protection of the Communications
              Decency Act.


              "AOL has been here before in what I
              consider a more important ruling,"
              David Kramer, a lawyer with the San
              Francisco law firm of Wilson,
              Sonsini, Goodrich & Rosati, said
              Thursday of the previous day's
              decision to drop AOL from the
              lawsuit filed against the
              cybercolumnist Matt Drudge.


              The more important  case,
              according to Kramer, is Zeran
              vs. American Online, which has
              been upheld by the United States
              Fourth Circuit Court of Appeals in
              Virginia. In that case a subscriber
              sued the online service provider
              because another AOL user had sent
              e-mail that used his phone number in
              a hoax selling souvenirs and T-shirts
              mocking victims of the Oklahoma
              City bombing.


              In another case, Doe vs. America
              Online, a Florida state judge said
              the mother of a minor could not sue
              AOL because a pedophile used the
              network to get addresses to distribute
              a videotape of him and her son.


              As in those cases, U.S. District Judge
              Paul L. Friedman dismissed AOL
              from the Drudge case citing the
              decency act, which was passed in
              1996. Although much of that law,
              which was designed to prohibit the
              transmission of indecent material
              over computer networks, was struck
              down last summer by the U.S.
              Supreme Court, the judges have said
              the still-standing language in that law
              protects Internet service providers
              from liability for content transmitted
              by subscribers.


              "Every judge that has ever looked at
              this case has found that the statue
              immunized interactive computer
              services from liability for content
              that originates with a third party,"
              said Patrick J. Carome, a partner
              with Washington, D.C., law firm of
              Wilmer, Cutler & Pickering who has
              defended AOL in all three of its


              cases.


              Kramer, who specializes in issues
              involving Internet service providers,
              said the rulings and the law "placed
              responsibility for libelous speech
              where it belongs - on the party
              responsible for generating it and not
              on the ISP that automatically
              retransmits content submitted by its
              subscribers."


              "The [Drudge] ruling is dead-on
              correct both as a matter of social
              policy and on applying the state that
              Congress passed," Kramer said.


              The  Drudge  case, however,
              presents a more complex question than
              Zeran or Doe because Drudge was
              not just a subscriber but was under
              contract with AOL when he wrote a
              column based on rumors of domestic
              trouble between a high-ranking
              Clinton aide, Sydney Blumenthal,
              and Blumenthal's wife. He ran a
              retraction and an apology the next
              day, but the Blumenthals still filed a
              $30 million libel suit naming Drudge
              and AOL.


              Friedman reluctantly wrote in the
              Drudge ruling that the decency act
              protects AOL, even though it
              exercises some editorial control over
              Drudge.


              Kramer said he expects that question
              to come up again on appeal.


              "I think Blumenthal's lawyers will
              argue ... that this is not an ordinary
              case of subscribers simply posting
              material to the Internet through an
              Internet service provider but rather a
              party receiving compensation from
              the ISP for the material he wrote."


              Mike Godwin, a lawyer with the
              Electronic Frontier Foundation,
              however, said that AOL has no more
              responsibility for reviewing
              Drudge's column than it does for
              The New York Times or ABC
              content that it also pays to put on its
              network.


              "Nobody has ever advanced the
              position that AOL should be held
              responsible if The Times libels
              somebody," he said. "Drudge is in
              that same relationship to AOL as The
              Times and ABC News. And that's the
              way it should be."


              "The minute liability is imposed on
              Internet service providers or online
              service providers for content
              originated by someone else, you are
              putting them in the position of
              having to review everything - every
              e-mail, every message posted to a
              chat room, everything on their
              network. That would more or less
              kill the whole industry and nobody
              wants to see that happen."






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                    Drudge Report


                    America Online


                    CyberTimes Communications
                    Decency Act Home Page


                    Electronic Frontier
                    Foundation




              Jeri Clausing at
              clausing () nytimes com welcomes
              your comments and suggestions.












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