2
It would, of course, be impossible to do justice to all of the issues related to defamatory
speech in cyberspace in a single presentation. Recognizing that fact, this paper focuses on the
narrow question of whether Internet Service Providers (ISPs) are legally responsible for third
party speech. Simply put, can a plaintiff sue an ISP like America Online (AOL) for something
said by one of AOL’s subscribers? In an effort to answer this question, the paper begins by
identifying two models—ISPs as distributors and ISPs as publishers—considered by the courts.
In Cubby v. CompuServe (1991), a federal district court held that CompuServe analogized the
ISP to a distributor. Since CompuServe was unaware of the content of the bulletin board, the
court ruled the ISP could not be held responsible for a defamatory posting on one of its bulletin
boards. In Stratton Oakmont v. Prodigy (1995a), a New York state court held that Prodigy
exercised editorial control, and could therefore be held responsible for a defamatory account
published on a bulletin board it maintained. The second section of the paper revisits this
controversy in light of the United State Court of Appeals for the Fourth Circuit decision in Zeran
v. America Online (1997a and 1997b), a case involving Section 230—the so-called “Good
Samaritan” clause—of the ill-fated Communications Decency Act. The final section of this
paper briefly summarizes the growing scholarly criticism of Section 230 and the Zeran decision.
In the final pages, the paper directly responds to this criticism, arguing the Section 230 was
intended to immunize ISPs, and that Zeran was correctly decided.
Distributor or Publisher?
Cubby and Stratton Oakmont
The first cases considering the culpability of ISPs for defamatory postings forced the
courts to consider whether ISPs are properly regarded as distributors or publishers. Since
Convention