From: banisar@epic.org (Dave Banisar) Newsgroups: comp.org.eff.talk,comp.org.cpsr.talk,alt.politics.datahighway,alt.censorship Subject: Prodigy held Liable for User's Post Date: Fri, 26 May 1995 22:18:53 -0400 A New York state trial court ruled on May 24 that Prodigy is responsible for the libelous statements of its users because it exercises editorial control over their posts. In the case, an anonymous Prodigy user made statements against New York Investment firm Stratton Oakmont accusing it of criminal and fraudulent acts. Stratton Oakmont sued Prodigy and the volunteer moderator of the forum where the statements were published. The Court found that Prodigy was acting as a publisher and therefore was responsible for the content of the posts. The Court distinguished the case from the earlier Cubby v. Compuserve decision, which found that Compuserve was subject to the standards of a bookstore or library. It that case, the US District court ruled that Compuserve had no editorial control over the text. According to the New York state court: In contrast, here Prodigy has virtually created an editorial staff of Board Leaders who have the ability to continually monitor incoming transmissions and in fact do spend time censoring notes. Indeed, it could be said that Prodigy's current system of automatic scanning, guidelines, and Board Leaders may have a chilling effect on freedom of communications in Cyberspace, and it appears that this chilling effect is exactly what Prodigy wants, but for the legal liability that attaches to such censorship. Let it be clear that this court is in full agreement with Cubby and Auvil. Computer bulletin boards should generally be regarded in the same context as bookstores, libraries and network affiliates...It is Prodigy's own policies, technology and staffing decisions which have altered the scenario and mandated the finding that it is a publisher. The court also attempted to downplay the significance of its decision on the greater area of electronic networks: Prodigy's conscious choice, to gain the benefits of editorial control, has opened it up to greater liability that Compuserve and other computer networks that make no such choice. For the record, the fear that this Court's finding of publisher status for Prodigy will compel all computer networks to abdicate control of their bulletin boards, incorrectly presumes that the market will refuse to compensate a network for its increased control and the resulting increased exposure. The Court also found that the volunteer "Board Leader" of the Prodigy Bulletin Board was acting as an agent of the company. The Court found Prodigy exercised control over the Board Leaders though the the Bulletin Board Leader Agreement and the actions of Prodigy's employees. Prodigy has said that it will consider appealing the decision. EPIC has materials on free speech available at http://epic.org/free_speech/ We will be making a copy of the decision available in the next few days.