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Subject: IP: Cybertimes story on Drudge ruling
April 24, 1998
In Drudge Case, AOL
Finds Shelter in
Decency Act
By JERI CLAUSING
WASHINGTON - A federal
judge's decision to dismiss a
libel suit against America
Online for transmitting an erroneous
gossip column about a White House
aide is the third such case the online
service provider has won under
protection of the Communications
Decency Act.
"AOL has been here before in what I
consider a more important ruling,"
David Kramer, a lawyer with the San
Francisco law firm of Wilson,
Sonsini, Goodrich & Rosati, said
Thursday of the previous day's
decision to drop AOL from the
lawsuit filed against the
cybercolumnist Matt Drudge.
The more important case,
according to Kramer, is Zeran
vs. American Online, which has
been upheld by the United States
Fourth Circuit Court of Appeals in
Virginia. In that case a subscriber
sued the online service provider
because another AOL user had sent
e-mail that used his phone number in
a hoax selling souvenirs and T-shirts
mocking victims of the Oklahoma
City bombing.
In another case, Doe vs. America
Online, a Florida state judge said
the mother of a minor could not sue
AOL because a pedophile used the
network to get addresses to distribute
a videotape of him and her son.
As in those cases, U.S. District Judge
Paul L. Friedman dismissed AOL
from the Drudge case citing the
decency act, which was passed in
1996. Although much of that law,
which was designed to prohibit the
transmission of indecent material
over computer networks, was struck
down last summer by the U.S.
Supreme Court, the judges have said
the still-standing language in that law
protects Internet service providers
from liability for content transmitted
by subscribers.
"Every judge that has ever looked at
this case has found that the statue
immunized interactive computer
services from liability for content
that originates with a third party,"
said Patrick J. Carome, a partner
with Washington, D.C., law firm of
Wilmer, Cutler & Pickering who has
defended AOL in all three of its
cases.
Kramer, who specializes in issues
involving Internet service providers,
said the rulings and the law "placed
responsibility for libelous speech
where it belongs - on the party
responsible for generating it and not
on the ISP that automatically
retransmits content submitted by its
subscribers."
"The [Drudge] ruling is dead-on
correct both as a matter of social
policy and on applying the state that
Congress passed," Kramer said.
The Drudge case, however,
presents a more complex question than
Zeran or Doe because Drudge was
not just a subscriber but was under
contract with AOL when he wrote a
column based on rumors of domestic
trouble between a high-ranking
Clinton aide, Sydney Blumenthal,
and Blumenthal's wife. He ran a
retraction and an apology the next
day, but the Blumenthals still filed a
$30 million libel suit naming Drudge
and AOL.
Friedman reluctantly wrote in the
Drudge ruling that the decency act
protects AOL, even though it
exercises some editorial control over
Drudge.
Kramer said he expects that question
to come up again on appeal.
"I think Blumenthal's lawyers will
argue ... that this is not an ordinary
case of subscribers simply posting
material to the Internet through an
Internet service provider but rather a
party receiving compensation from
the ISP for the material he wrote."
Mike Godwin, a lawyer with the
Electronic Frontier Foundation,
however, said that AOL has no more
responsibility for reviewing
Drudge's column than it does for
The New York Times or ABC
content that it also pays to put on its
network.
"Nobody has ever advanced the
position that AOL should be held
responsible if The Times libels
somebody," he said. "Drudge is in
that same relationship to AOL as The
Times and ABC News. And that's the
way it should be."
"The minute liability is imposed on
Internet service providers or online
service providers for content
originated by someone else, you are
putting them in the position of
having to review everything - every
e-mail, every message posted to a
chat room, everything on their
network. That would more or less
kill the whole industry and nobody
wants to see that happen."
Related Sites
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mentioned in this article. These sites are not
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The Times has no control over their content
or availability. When you have finished
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reappears.
Drudge Report
America Online
CyberTimes Communications
Decency Act Home Page
Electronic Frontier
Foundation
Jeri Clausing at
clausing@nytimes.com welcomes
your comments and suggestions.
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