Re: AOL Promulgates False Advertising Deliberately

In article <bill-1807950908250001@sc1.scconsult.com> bill@scconsult.com "Bill Stewart-Cole" writes:

> In article <805964375snz@sidaway.demon.co.uk>, Tony@sidaway.demon.co.uk wrote:
>
> >In article <3ucpjh$emn@news3.digex.net>
> > mcgatney@access.digex.net "D. McGatney (hv" writes:
> >
> >> AOL is not responsible for opinions expressed on its boards. Try
> >> someday proving that a medical claim is false. The 1971 case is
> >> old and decided by a state court; the Prodigy case dealt with libel.
> >> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> >
> >
> > AOL _is_ responsible for the opinions expressed on its boards,
> > precisely because its employee or agent sermoner1@aol.com polices
> > the board in question.
> >
> > So the 1971 case is old and decided by a District Court. This is
> > still a precedent and it is still binding on the church of
> > scientology.
> >
> > The prodigy ruling dealt with _liability_. It did not make any
> > ruling on libel, simply whether Prodigy could be held _liable_
> > for the utterances on its board.
>
> AOL probably is NOT liable.
> The best pair of cases to look at are the recent Prodigy case (I don't
> have the name of the plaintiff there... anyone?) and Cubby v. CompuServe.
> The latter is much closer to the AOL situation, and hinged on the fact
> that while CI$ does have content rules and does delete inappropriate
> messages, the WAY they do so (on an ad hoc basis, after messages are
> posted and perhaps read by many) protects them, or at least did in the
> case of the defamation of Cubby. The Prodigy case differs because Prodigy
> pre-filters messages. By ever making it to the public eye, a message on
> Prodigy implicitly has the seal of approval of Prodigy. That they don't
> fact-check was apparently irrelevant. AOL's practices are technically
> closer to those of CI$ than to Prodigy, although AOL is tighter than CI$.
I am not fully conversant with the Prodigy decision, but I have read a report that appears to indicate that the continuous monitoring and censorship of incoming posts by agents of the company is the crux. The people in charge of the AOL folders are certainly agents of the company--they implement its code of conduct. The question is the degree of control that needs to be effected before the network provider qualifies as a publisher.

From the article I read (a direct quote from the judgement): > In contrast, here Prodigy has virtually created an
> editorial staff of Board Leaders who have the ability to
> continually monitor incoming transmissions and in fact do
> spend time censoring notes. Indeed, it could be said that
> Prodigy's current system of automatic scanning,
> guidelines, and Board Leaders may have a chilling effect
> on freedom of communications in Cyberspace, and it appears
> that this chilling effect is exactly what Prodigy wants,
> but for the legal liability that attaches to such
> censorship.
I have received email and seen posts from AOL users whom I have good reason to trust, indicating that the sermoner1@aol.com does indeed censor posts, but he probably does so only on request. This may make the crucial difference.

>
> The issue of precedent is a valid one, but ignoring Cubby is as bad as
> dismissing the 1971 case.
Agreed. The Cubby decision rested on the fact that the Compuserve forum in question was operated by a third party and Compuserve had a contract that specifically gave the responsibility to manage the content to another party. I'd say the AOL is considerably closer to Prodigy than to to Compuserve in this instance. AOL's agents are exercising great control over the posts to boards--people I trust have said that messages have vanished in a matter of minutes. It's not clear to me in the Prodigy case whether the boards were moderated in the USENET sense--posts not appearing unless approved. That could be a factor in AOL's favor.

From the Cubby decision:

> One forum available is the Journalism Forum, which focuses on the
> journalism industry. Cameron Communications, Inc. ("CCI"), which
> is independent of CompuServe, has contracted to "manage, review,
> create, delete, edit and otherwise control the contents" of the
> Journalism Forum "in accordance with editorial and technical
> standards and conventions of style as established by CompuServe."
> Affidavit of Jim Cameron, sworn to on April 4, 1991 ("Cameron
> Aff."), Exhibit A.
>
> One publication available as part of the Journalism Forum is
> Rumorville USA ("Rumorville"), a daily newsletter that provides
> reports about broadcast journalism and journalists. Rumorville is
> published by Don Fitzpatrick Associates of San Francisco ("DFA"),
> which is headed by defendant Don Fitzpatrick. CompuServe has no
> employment, contractual, or other direct relationship with either
> DFA or Fitzpatrick; DFA provides Rumorville to the Journalism
> Forum under a contract with CCI. The contract between CCI and DFA
> provides that DFA "accepts total responsibility for the contents"
> of Rumorville. Cameron Aff., Exhibit B. The contract also
> requires CCI to limit access to Rumorville to those CIS subscribers
> who have previously made membership arrangements directly with DFA.
>
> CompuServe has no opportunity to review Rumorville's contents
> before DFA uploads it into CompuServe's computer banks, from which
> it is immediately available to approved CIS subscribers.
> CompuServe receives no part of any fees that DFA charges for access
> to Rumorville, nor does CompuServe compensate DFA for providing
> Rumorville to the Journalism Forum; the compensation CompuServe
> receives for making Rumorville available to its subscribers is the
> standard online time usage and membership fees charged to all CIS
> subscribers, regardless of the information services they use.
> CompuServe maintains that, before this action was filed, it had no
> notice of any complaints about the contents of the Rumorville
> publication or about DFA.
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