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> Date: Fri, 26 May 1995 15:36:51 -0400 (EDT)
> From: Pierre Bourque 
> To: nit@chron.com
> Subject: Prodigy on the hook ??
> > ---------- Forwarded message ----------
> > Date: Fri, 26 May 1995 12:52 -0500 (EST)
> > 
> >   Judge Rules Prodigy Accountable
> > 
> >   New York state Judge Stuart L. Ain has ruled Prodigy is responsible for the 
> > content of its subscribers' electronic messages, apparently stripping the 
> > online  service of a major defense in a current libel suit.

This leading paragraph is misleading.  Judge Ain has ruled that Prodigy 
cannot claim that it excercised no editorial license.

> >   Ain's 15-page opinion in the case of a multimillion dollar suit against 
> > Prodigy says the company can be held liable because it functions more as a 
> > publisher than as a passive conduit of information.

> >   Covering the case for The Wall Street Journal, reporter Milo Geyelin writes 
> > this morning the decision gives the go-ahead to a suit filed by the 
> > investment banking firm Stratton Oakmont Inc., in Lake Success, New York, 
> > last November against Prodigy. As reported earlier, Stratton contends Prodigy 
> > is liable for a message posted by a subscriber last October accusing the 
> > investment firm of criminal conduct.

There are three important questions here:

Did the plaintiff actually reply to set the record streight?  The main 
distinction of a moderated news-group is that responses to allegations 
are not stopped.  There are several moderated groups where companies like 
Sun and Microsoft respond to embarrassing information including 
unsubstantiated criminal accusations, often including promotional 
announcements with the reply.  The compuserve "Web Worm" included a 
response and promotional information.  Neither was censured in the 
interest of maintaining an open forum.

Did Prodigy receive corrective responses?  Often, allegations are made 
which later turn out to be accurate.  Often "Rumors" on the internet have 
been more accurate than the public responses.  The difference between a 
leak on the internet and a leak to the general media is that it takes 
more than a "non-denial denial", or a "That's a lie, don't print it" to
stop the circulation.  The best defence against an allegation of this 
type is an accurate explanation and interpretation of the facts presented 
by the accuser.  Often, allegation is only an interpretation created by the
accuser and the accused can calm the storm by supplying their own 
interpretation.  The Compuserve Web Browser was an excellent example of
responding powerfully.  What could have been the start of a major 
mudslinging ultimately became a PR Coup for Compuserve.

> >   Geyelin observes, "The case is being closely watched by the online 
> > information  industry, which contends that it can't be responsible for what 
> > its subscribers post on its bulletin boards any more than a bookstore or 
> > newsstand can be liable  for what they make publicly available. The online 
> > industry contends that, like a  bookstore or library, it exercises no control 
> > over the content of its subscribers' messages."

Prodigy does have more control than most, and may have been told to "Kill 
the story" by the plaintiff.  Did Prodigy know that it was circulating 
inacurate information - probably not.  The general rule on an open forum 
is:  "When in doubt, talk it out".  The power of the internet is that 
conflicts and disputes are resolved through communication.  Rational
responses to accusations and flames are extremely powerful.

> >   Generally, Ain took no issue with that argument, writing in his opinion, 
> > "Computer bulletin boards should generally be regarded in the same context as 
> > bookstores, libraries and network affiliates."

There is one exception.  When a moderator allows accusations or 
propaganda and promotional contributions but blocks or "kills" direct 
responses to those accusations and viewpoints.  If I put out a 
"hate.bill.gates" mailing list in which I only accepted accusations and
allegations (substiated or not) and killed every rebuttle from Microsoft 
or Microsoft proponants, then I would not be a "Library".  Libraries don't
generally burn Bibles, Korans, or Toras and stock exclusively with racist
or biased "hate-books".  Part of the "balance of the internet" is that
while there are "alt.christian-white-supremacy" groups there are also
alt.feminism and alt.sex.* and alt.motss (gay) groups.  The power of the
internet is that there is an level playing field for conservatives and 
liberals, unix-gurus and Microsoft Wizards, fundamentalists and perverts, 
muslims and christians.  In general the result of this diversity is 
resolution of conflicts and powerful consensus that can be implemented.

> >   However, he said, Prodigy is different, because as far back as 1990 it 
> > marketed itself as a superior service precisely because of its editorial 
> > control.

There is a big difference between killing "you are a stupid $!@@$#!$%^" and
killing legitimate responses.  I have seen no indication that Prodigy 
blocked a legitimate response.  If they did do this, they 

> >   The judge's ruling cited an article by Geoffrey Moore, Prodigy's director 
> > of market programs and communications, which said, "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."

There is a concern here.  While the case in point is unilateral 
censorship of a plaintiff, prodigy (or any other moderator) must be 
careful not to "filter out" groups, replies, or individuals based on their
affiliation or corporate status.  To kill a message because it contains 
vulgarity is understandable.  To prevent a corporation from responding to 
allegations simply because it is registered from a .com address is a 
different issue.

> >   Also, the judge observed, Prodigy has promulgated "content guidelines" for 
> > its  postings, used a program to screen all bulletin-board messages for 
> > offensive language before posting and appointed a group of "board leaders" to 
> > enforce the guidelines.

The internet also offers such groups.  Generally, moderators are very 
reluctant to kill articles.  When they do, they respond to the poster 
asking them to remove the inappropriate material.  In some cases, posters 
have insisted that the material be posted as-is and the moderator 
generally complies.

> >   The Journal says, "In addition, an 'emergency delete function' allowed 
> > Prodigy  to remove offensive notes and provide the senders an explanation 
> > why, according to testimony by Charles Epstein, board leader of Prodigy's 
> > Money Talk computer bulletin board on which the disputed posting 
> > appeared."

The question is, the plaintif ask that the story be killed?  Did Prodigy 
refuse to kill the story?  Did Prodigy allow them to post a response?

What editor, given a staff of one and a content of 6,000 stories/day 
would kill a story because he thought the allegations might not be true.


> >   So, Judge Ain wrote, "It is Prodigy's own policies, technology and staffing 
> > decisions which have altered the scenario and mandated a finding that it is a 
> > publisher. 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."

Moderated news-groups and mailing lists make the same choices and take 
the same risks, but short of substantial abuse (moderators who are clearly
biased and kill legitimate content for the purposes of promoting a specific
cause or content (The moderated Sun group only accepting pro-sun and 
anti-microsoft postings for example) would merit control.  The most 
common sanction of such newsgroups is to stop carrying that group on 
the distribution servers (kill files).  The moderator can continue to 
archive his biased group on his local server, but subscribers have to be 
able to be NNTP clients to get it.

> >   The Journal notes the CompuServe case to which Ain referred is the only 
> > prior libel case involving online services. There, a 1991 decision limited a 
> > defamed party's ability to sue for libel.
> >   As noted earlier, Prodigy has argued in the current case that the volume of 
> > its daily postings -- some 60,000 messages -- made monitoring each one 
> > impossible.

Dow Jones edits that many each day, but they don't have to explain why 
they DIDN'T include some piece of content.  Again, did Prodigy prevent
the plaintiff from responding?

> >   The Journal reports, "The company claimed that it abandoned its early 
> > marketing claim in 1992, long before the disputed Money Talk postings last 
> > October and that its board leaders don't function as editors. But the judge 
> > ruled that the company didn't provide any 'documentation or detailed 
> > explanation  of such a change' and rejected the argument."

Prodigy 

	Rex Ballard
	Standard & Poor's/McGraw-Hill
	Opinions expressed do not necessarily reflect
	the Management of the McGraw-Hill Companies.






From rballard@cnj.digex.net Fri Jun  2 15:23:40 1995
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