Can a company be sued for libelous statements posted on its computer bulletin board?

, ,

An anonymous user of a computer bulletin board posted defamatory statements about a securities investment banking firm. The statements claimed that the firm’s president had engaged in fraudulent and criminal conduct concerning a particular offering, and that the firm consisted of a “cult of brokers who either lie for a living or get fired.” The actual author of the statements was unknown, so the investment firm aimed its libel suit at the corporation that owned and operated the computer network.
The plaintiff convinced a New York court that the computer network company was a “publisher” of the libelous statements and therefore could be held liable under the principle that one who repeats or otherwise republishes a libel is subject to liability as if he had originally published it. A mere distributor or deliverer of defamatory material, on the other hand, can be found liable only if it was at fault in the sense of knowing or having reason to know of the defamatory statement.
For example, newspapers and magazines generally are publishers, while bookstores and libraries are distributors. The key factor in distinguishing the two concepts is whether the person or entity exercises sufficient editorial control over the content to move from distributor to publisher status.
Ironically, the same measures that the computer network firm took to weed out insulting, harassing, or offensive language from its bulletin board were emphasized by the court in finding that it was a publisher that could be found accountable to the defamed investment firm. The computer firm held itself out as operating a “family oriented” network exercising editorial control over the content of posted messages. It developed content guidelines and enforced them by means of “board leaders” who had authority to delete notes not in compliance with the guidelines. Even though the computer firm could not possibly pass judgment on each of the 60,000 messages posted every day on its bulletin board, it exercised enough editorial control to assume the same responsibilities as the publisher of a newspaper.
The computer network company argued unsuccessfully that it was in the same position as a computer service company that had fought off a similar libel claim in federal court four years earlier. In that case, a publication available on a journalism forum operated by a computer firm defamed an electronic newsletter. The computer company avoided liability because the court found that, in essence, it was operating an electronic, for?profit library. In that library was a vast number of publications, the content of which was not overseen or controlled by the provider of the computer services.
That provider, unlike its counterpart in the New York court case, had not “uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards.” The lesson from these cases for computer service providers may be that no editorial control at all is safer than anything less than total control.