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Introduction
The law of defamation
addresses harm to a person's reputation or good name through
slander and libel. The Internet has made it easier than ever
before to disseminate defamatory statements to a worldwide
audience with impunity. For some time, courts have struggled with
remedies for Web defamation. The problem has been magnified by the
difficulty in identifying the perpetrator, and the degree to which
Internet Service Providers (ISP's) should be held accountable for
facilitating the defamatory activity.
Lunney
v. Prodigy
One of the most recent cases addressing Internet defamation is the
New York case of Lunney v. Prodigy. In Lunney, an imposter
opened several Prodigy accounts under different versions of
Alexander Lunney's name. He then transmitted threatening e-mail
messages to the local Boy Scout master threatening to kill him,
molest his sons and "show your wife how a real Boy Scout
pitches a tent." The Scout master alerted the police who
reported that Mr. Lunney was not the perpetuator. Prodigy then
terminated Lunney's account because of the transmission of
"obscene, abusive, threatening and sexually explicit
materials through the Prodigy service." When Lunney advised
Prodigy that it was an imposter who had opened the accounts,
Prodigy apologized and notified Lunney it had uncovered four
additional accounts under his name without Prodigy's knowledge.
Lunney sued Prodigy
seeking, among other things, damages for defamation by Prodigy
inasmuch as Lunney was portrayed as the author of vulgar and
threatening material due to Prodigy's negligence. In its analysis
of whether Prodigy was liable, the court was required to determine
whether Prodigy was a "publisher" or merely a
"distributor" of e-mail messages. The court concluded
that although commercial on-line services like Prodigy transmit
e?mail, they do not exercise any editorial control. The court
stated:
Prodigy's role in
transmitting e-mail is akin to that of a telephone company, where
one neither wants nor expects to superintend the content of its
subscribers' conversation. In this respect, an ISP, like a
telephone company, is merely a conduit.
Bulletin board postings, as
opposed to e-mail, however, pose a special problem. Prodigy, as
other ISP's, monitors and edits bulletin board content, thereby
theoretically causing them to fall into a category of a
"publisher" for purposed of defamation analysis. If
Prodigy took on the responsibility of monitoring and censoring its
bulletin board postings, then it would also be liable for allowing
the vulgar content that injured Lunney's reputation to be
published. The court, in a questionable analysis, concluded that
Prodigy's power to exert editorial control did not alter its
essentially passive posture as a mere conduit of information so as
to render it a "publisher" of bulletin board messages.
The court's choice to avoid ISP liability for the content of
bulletin board messages and e-mail distributed by its members is
consistent with prior cases on the topic. It does not, however,
resolve the issue of how the member of an ISP such as like Mr.
Lunney can obtain a remedy for defamation on the Internet against
the true perpetrator.
Suing
Unknown Defendants as "John Doe"
Although ISP's under current case law are theoretically not liable
for posting and transmitting defamatory information, they
nevertheless are frequently joined as defendants in defamation
lawsuits. The reason is purely a practical one that uses the
"John Doe" method of suing an unknown wrongdoer.
E-mail addresses on their
face do not necessarily identify the origin of the message. Domain
name registration services, however, can be used to identify at
least the identity of the perpetrator's own ISP. By entering the
upper level domain name on a registrar's Website, the identity of
the ISP of origin can usually be determined. But even if a victim
is successful in identifying the wrongdoer's ISP, ISP's are
reluctant to disclose the identities of their members. To do so
may expose them to claims of breach of contract, violation of
privacy rights, and negligence. A controversial litigation tactic
now comes into play.
Once the ISP has been
identified, Internet attorneys will frequently file a lawsuit for
defamation against the ISP, knowing full well that it cannot be
held liable. The lawsuit also names an unknown co-defendant as
"John Doe." Once the lawsuit is initiated, the attorneys
are then permitted to make discovery demands on the identified ISP
to obtain records and information that will reveal the true
identity of the ISP's member who has been sending the offending
e-mail. Once "John Doe" has been identified with the
help of his own ISP, the ISP is usually dismissed from the
lawsuit. The plaintiff then proceeds against the wrongdoer as the
only defendant.
Conclusion
Due to the novel methods in which defamation is perpetrated on the
Internet, courts have been required to "stretch" the law
in both substance and procedure. Although ISP's are theoretically
immune from liability for defamation perpetrated by their members,
they have been unable to escape being sued as a party to
defamation lawsuits altogether. On the other hand, being forced by
a court order to reveal confidential customer information may
actually help an ISP by immunizing it from liability to its own
members
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Defamation on the web: who do you sue?
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The
author can be reached at: sml@libertolaw.com /
