In-Reply-To: <199506030414.XAA18257@mixcom.mixcom.com>
Message-ID: 
MIME-Version: 1.0
Content-Type: TEXT/PLAIN; charset=US-ASCII


On Fri, 2 Jun 1995, Eric K. Meyer wrote:

> On  2 Jun 95, Rex Ballard wrote:
> 
> Rex: I'd let you take apart my computer anyday, but before you get 
> too caught up in media law you might want a little refresher course.

Libel and slander were only covered in net.legal and later soc.legal
for about 15 years.  This isn't the first time someone has tried to
sue a moderator for libel.  On the other hand, I haven't been following
the developments in the last few years (so much to do, so little time)

> > [Prodigy is liable for any libel on its bulletin boards.]
> > This leading paragraph is misleading.  Judge Ain has ruled that
> > Prodigy cannot claim that it excercised no editorial license.
> 
> The points are one and the same. If you exercise editorial control, 
> you are responsible for content. Period.

Up until now, the precidents have always been based on "equal access".
In effect, the content of moderated groups had to follow certain guidelines,
but so long as those were followed, postings were passed through.

There were many times when sun, atari, and msdos groups have wanted to
stifle the content of detrimental information.  It is embarrassing to
suddenly have gaping flaws in your product or service published to
4,000 customers or potential corporate buyers.  Oracle actually
had to alter their customer service program as a result of newsgroup
traffic.  Charges have even been filed.  In general, the "equal access"
rule has protected moderators, with the exception of moderators who
would deliberately kill particular viewpoints.

Personally, I have always been distrustful of moderated newsgroups,
especially when a newsgroup such as comp.os.aix is moderated by
IBM.

> > Did the plaintiff actually reply to set the record streight? 
> 
> In defamation, retractions and correctives mitigate damages 
> only. They do *not* mitigate guilt.

There is still a question of whether the moderator intentionally published
a document which would be damaging as a function of editorial function.
If the article was written articulately and did not contain "pure noise",
it is reasonable for the moderator to let the posting through.  In
some cases, they only look for the "Seven Dirty Words" using a filter
program.

> > Often, allegations are
> > made which later turn out to be accurate. 
> 
> Yep. That's why editors -- and Prodigy has been ruled to be one -- 
> exercise great care about printing allegations. Your only ironclad 
> defense against defamation is proveable truth, and the burden to
> prove it is on you. Thereafter you might be able to claim privilege 
> (fair quoting of public record, not a factor in this case) and fair
> comment (opinion, absent fact, also dubious here). That leaves only 
> lack of negligence or malice, depending on the plaintiff's public 
> status, but such constitutional defenses are last, desperate resorts.

IF Prodigy claimed that they would kill all stories which cannot be
verified, they would have more credibility (NY Times vs. National Inquirer),
and they would have at least confirmed the allegations before releasing
the posting.  This the difference between a BBS or Newsgroup or Forum
or "Group" vs. a News Wire.  If Joe Smith, a college student in
Florida says he thinks Windows95 will be out in 1997, he can post
that opinion on most groups, including Prodigy, PR Newswire would
probably kill the story immediately.

When I see a "NewsFlash" in "Highlights" that says "Investment
Firm Accused of Fraud", I would say Prodigy would be liable.  When
a personal posting in a "Gossip Board", that has the "Wild hare
buy of the week" from 20 different "Insiders" from Iowa, says
his broker is a crook, It doesn't carry much editorial weight.

I have read the board in question.  I would assume this was another
investor upset because his broker worked the margin a bit.  Definitely
not cause for a federal endightment.  If I was already on the verge
of making a commitment, I might want to chech out even the biz.* groups
on usenet for dirt.

> > Did Prodigy know that it was  circulating inacurate information.
> 
> That's irrelevant unless you get to the actual-malice defense.
> But that defense applies only to public figures who have willingly
> thrust themselves into the vortex of public debate. I doubt that 
> such a defense would apply here.

The issue is to what degree a moderator excercises editorial control.
A moderator who keeps a tight rein on his group like Steve uses
on ONLINE-NEWSPAPERS, assures a higher level of credibility.  There
are people who act on my reccomendations for Web Servers, but
aren't going to remove Microsoft Windows from their PCs just 'cause
I said so.

> > 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.
> Bias is irrelevant, too, until you get to the last-line defense
> of actual malice. What matters is whether the statement was damaging 
> and you conveyed it to others via a medium over which you could exert 
> some editorial role, whether you chose to do so or not.
In the law, very little is "black and white".  The domain of editorial
license has many shades of grey.  Even the Wall Street Journal publishes
inaccurate information which is detremental to certain companies.  Every
Internet provider should be suing WSJ for Walt Mosbarger's postings
as an "Internet Expert", while using a UUCP mail account about a year 
ago.  He probably did several million in damages.

It will be fun to see how this one pans out.  The danger is that Prodigy
could lose, and expose every on-line service and internet moderator to
lible suits.  Add to that talk-radio hosts and live-call ins.  Don't forget
the bulletin board, and the guy who posts damaging liturature on telephone
poles.

> > 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.
> 
> Every editor who plans to remain one for very long. You allude to 
> basically is a no-negligence argument. Of all the arguments cited, it 
> probably has the best chance of succeeding.

The key here is that Prodigy has about 50 stories it publishes under it's 
own editorial banner.  It passes about 6000 postings/hour into the bulletin
boards with no assurance of accuracy.  The only editorial policy is
to make sure that 10 year old kids aren't barraged with 10 paragraphs
of expletives because some one didn't agree with an earlier poster.
For good samples of what Prodigy tries to prevent, go visit alt.abortion.

> No-negligence might play if the bulletin board
> ...
> anyway or that,

> in the normal course of prudent business, there was 
> no need to question the allegation.
BINGO.  In the normal cours of prudent business - operating a public access
bulletin board where only obscenity is removed - such a posting would
be considered the "fodder" which should drum up the contriversy that
drives bullitin boards.  Prodigy makes 25 cents/kilobyte for responses.
Wild claims that draw massive responses are GOLD to a charge-per-post board.

Prodigy never claims that their boards have high levels of credibility.  The
exceptions are the closed "Panels".

> In this case, however, it seems 
> any good journalist would know better than to allow the message 
> through.
If this were a newspaper, seeking to maintain an established reputation
of credibility, a good journalist would have challenged the source, 
requesting confirmation, would have solicited the accused for a response, 
and would have provided background information about legal issues, and
possibly opinions from several industry analysts.  Sometimes all of that
spontaineously shows up in a BBS group.  When all of that shows up,
it may eventually end up in respectable news sources.

> > Moderated news-groups and mailing lists make the same choices and
> > take the same risks.
> YES, YES, YES. And they had better start being more careful. The only
> thing limiting cases against them right now probably is that the 
> moderators don't have that much money to go after. But if a company 
> acts as moderator or supports one, watch out. Suits will fly.

NO, NO, NO.  Moderated newsgroups should be the forums for responsible
discussions of such issues.  Let the accusations fly.  Let the responses
be heard, let the supporting data be contributed, and let the issue
be heard in what would be the equivalent of public debate.  For the first
time in history, we have the ability for all interested parties to
carry on responsible debate in national forums.

Moderated newsgroups are designed to reduce the signal to noise ratio.
Today, many users will post frequently asked questions because they
don't even know where to get the FAQ information.  Some start posting
before they even know what FAQ is (Frequently Asked Questions).

Even on this little mailing list, we have seen people come back with
frequently asked questions that led to 100 responses starting with
why didn't you read the FAQ? or "Discuss that elsewhere".

> That's exactly why most companies have urged everyone using a 
> corporate account to add the tag line about not speaking for the 
> company to every message they post. 

Actually, that is a reccomendation that is viewed by every new
user to the internet (net.newusers), this is the only REQUIRED newsgroup
on the internet.  Where is your disclaimer?

> ____________________________________________________
> 
> ERIC K. MEYER                    meyer@newslink.org 
> WWW NewsLink       http://www.newslink.org/newslink/
> ____________________________________________________
> 

	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 Sun Jun 11 17:38:02 1995
Status: O
X-Status: