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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  3 distributors do not have content control, they are only liable for defamation if they know or have reason to know that they are distributing defamatory material. In contrast, publishers exercise editorial control and therefore have been held liable for the content of their publications. This distinction explains, for instance, why Random House is responsible for the content of a book that it publishes, whereas Barnes and Noble is not responsible for the contents of books on its store’s shelves. ISPs, unfortunately, share qualities of both distributor and publisher, explaining the contradictory decisions in Cubby v. CompuServe and Stratton Oakmont v. Prodigy. Cubby v. CompuServe (1991) In Cubby, the court considered CompuServe’s responsibility for a series of allegedly false and defamatory statements posted on its “Journalism Forum” bulletin board. One part of the “Journalism Forum,” which was managed for CompuServe by Cameron Communication, was a publication prepared by Don Fitzpatrick Associates (DFA) entitled “Rumorville, USA.” Cubby’s suit alleged that when it attempted to market a competing database called “Skuttlebut,” postings on Rumorville defamed Cubby by characterizing the effort as a “new start-up scam” among other things. In issuing a summary judgment for CompuServe, the court held that “First Amendment guarantees have long been recognized as protecting distribution of publications. . . . Obviously, the national distributor of hundreds of periodicals has no duty to monitor each issue of every periodical it distributes” (p. 140). Since CompuServe had no opportunity to review Rumorville’s contents before DFA uploaded it to CompuServe’s server, the ISP could not be “held liable on the libel claim because it neither knew nor had reason to know of the allegedly defamatory statements” (p. 139). By way of analogy, the court reasoned, “CompuServe has no more editorial

Authors: Herbeck, Dale.
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distributors do not have content control, they are only liable for defamation if they know or have
reason to know that they are distributing defamatory material. In contrast, publishers exercise
editorial control and therefore have been held liable for the content of their publications. This
distinction explains, for instance, why Random House is responsible for the content of a book
that it publishes, whereas Barnes and Noble is not responsible for the contents of books on its
store’s shelves. ISPs, unfortunately, share qualities of both distributor and publisher, explaining
the contradictory decisions in Cubby v. CompuServe and Stratton Oakmont v. Prodigy.
Cubby v. CompuServe (1991)
In Cubby, the court considered CompuServe’s responsibility for a series of allegedly false
and defamatory statements posted on its “Journalism Forum” bulletin board. One part of the
“Journalism Forum,” which was managed for CompuServe by Cameron Communication, was a
publication prepared by Don Fitzpatrick Associates (DFA) entitled “Rumorville, USA.” Cubby’s
suit alleged that when it attempted to market a competing database called “Skuttlebut,” postings
on Rumorville defamed Cubby by characterizing the effort as a “new start-up scam” among other
things.
In issuing a summary judgment for CompuServe, the court held that “First Amendment
guarantees have long been recognized as protecting distribution of publications. . . . Obviously,
the national distributor of hundreds of periodicals has no duty to monitor each issue of every
periodical it distributes” (p. 140). Since CompuServe had no opportunity to review Rumorville’s
contents before DFA uploaded it to CompuServe’s server, the ISP could not be “held liable on
the libel claim because it neither knew nor had reason to know of the allegedly defamatory
statements” (p. 139). By way of analogy, the court reasoned, “CompuServe has no more editorial


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