The laws of cyberspace continue to develop, albeit slowly.
The debate over the regulation of the Internet and online services has begun to
rage at the Congressional level, potentially entangling pornography, hate
speech and bomb recipes on the Net in a web of federal regulations. But as
these debates wend their way through rhetorical drivel and outright paranoia,
at this moment the real law of cyberspace is being developed in the courts.
The recent New York decision of Stern v. Delphi Internet Services Corp.
(New York Supreme Court, May 1, 1995) exemplifies how the law of cyberspace is
being developed in comparative obscurity. Stern v. Delphi also indicates
the way courts are grappling with the technology of cyberspace in an attempt to
craft sensible rules to govern this technology.
The Stern case deals with the issue of whether an online service is a
"news disseminator" for the purposes of applying an invasion of
privacy statute. Stratton Oakmont v. Prodigy, also a New York Supreme
Court decision which was issued about three weeks following Stern, deals with
the issue of whether an online service is a "publisher" for purposes
of defamation liability. While the
Stratton Oakmont and Stern courts both engaged in "analogizing" to
reach their decisions, the Stratton Oakmont court did not look to or discuss
the Stern case in reaching its decision. As this analysis will discuss, the
Stern court's methodology could have been useful in reaching a more precise
result in the Stratton Oakmont case - and could be helpful in resolving future
cases involving online services.
THE FACTS
Delphi is a major national online service and Internet service provider,
with approximately 500,000 subscribers. When talk radio host Howard Stern
announced his candidacy for Governor of New York in 1994, Delphi created an
online discussion forum for its subscribers to discuss Stern's candidacy.
At that time, to promote its service, Delphi placed some advertisements in
New York periodicals, advertising Delphi and its discussion forum on Stern's
candidacy. As part of the advertisements, Delphi used a photograph of Stern in
leather pants that exposed most of his behind. Although the source of the
photograph was not specified, it was clear Stern had posed for the photo, and
he did not allege that Delphi's possession of it was impermissible or unlawful.
INVASION OF PRIVACY
Common law recognizes the tort of invasion of privacy, which includes a
cause of action for the misappropriation of a person's name or likeness. In New
York, the common law tort action has been codified by New York Civil Right Law,
Sections 50 and 51, which makes it both a misdemeanor and a tort to
commercially misappropriate a person's name or likeness. In this case, it was
undisputed that Delphi had commercially appropriated Stern's likeness by using
a photo of Stern's behind in its advertisement without Stern's permission.
INCIDENTAL USE EXCEPTION
New York courts have created an exception to the statute called the
"incidental use exception." This exception permits "news
disseminators" to use a person's name or likeness to advertise the news
disseminator. Therefore, if the New York Times wants to advertise its
news gathering and reporting by using a photograph in an advertisement, the New
York Times is not liable to the subject of the photo for invasion of
privacy, whether or not the Times obtained permission from the subject.
Because the exception is available only to "news disseminators,"
the Stern court had to deal with the "novel" issue of whether Delphi
should be treated as a news disseminator.
On the one hand, this is an easy question. While in the 1970s there was
great paranoia that the "Fourth Estate" would obtain a monopoly on
the dissemination of news, it is clear that the hegemony of the traditional
news filters has disappeared. The Internet played a prominent role in such
major world events as Tiananmen Square and the failed Russian coup of 1991.
Online services typically create discussion forums for the dissemination of
news and information within hours or even minutes after major crises such as
the Northridge earthquake of 1994 and the recent Oklahoma City bombing. These
discussion areas are often the quickest and most accessible way of obtaining
news from the source during a crisis. The instantaneous nature and global scope
of online services have created a flourishing online information economy that
allows many information seekers to bypass the slower, filtered news media. As a
result, there can be little question that online services are news
disseminators, and important ones at that.
On the other hand, online services do much more than just disseminate news.
Online services allow users to chat with each other on silly topics, to play
games, and to download photos of naked women. A court anxious to look beyond
the more "socially valued" functions of news dissemination might
easily have derided the significance of the new technology, finding that its
news dissemination component was outweighed by its frivolous functions.
At this critical juncture in the court's analysis, Judge Goodman made a leap
of heroic proportions. Instead of trying to fit Delphi into a single functional
category, the court looked to whether the likeness was used to promote the news
dissemination function.
The importance of doing such a functional analysis cannot be overstated.
Functionally, online services users can post public messages on a bulletin
board, send private e-mail, chat with each other in real time, upload and
download information, upload and download software, shop, store information
electronically, and so on. No one doctrine of law can cover the rights and
responsibilities of sysops and users in such a broad range of functions. Yet,
there is always the danger that an uninitiated court will ignore the different
functional uses and try to apply the law that is applicable in one function to
a function to which the laws are less suited. Judge Goodman asked the
questions:
(1) is there a news dissemination component to the service, and
(2) did the advertisement pertain to this function?
By asking these questions, the court used the correct approach - what
function is implicated and how did the online service treat that function -
that we can only hope will be replicated in future decisions.
SEARCHING FOR THE RIGHT ANALOGY
In deciding whether or not Delphi in fact did act as a news disseminator,
the court looked at various analogies to determine if Delphi had a news
dissemination function.
The court initially looked to the landmark case of Cubby v. CompuServe,
776 F. Supp. 135 (S.D.N.Y 1991). In Cubby, CompuServe established an
independent contractor relationship with the manager of its journalism forum.
One of the content providers to the journalism forum disseminated allegedly
defamatory material, and the (allegedly) defamed party sued, among others, the
manager of the journalism forum and CompuServe. CompuServe pointed out that it
had no relationship with the party that wrote the material in question other
than that CompuServe allowed the material to be disseminated over its network.
The Cubby court, recognizing that CompuServe had little control over what
content was being disseminated, analogized CompuServe to "an electronic,
for-profit library" and further reasoned that CompuServe should not be liable
for the content contained on the forum, any more than a library would be
responsible for defamatory content in one of its thousands of books.
The Stern court, looking at the Cubby decision, noted that the Cubby court
had afforded CompuServe the same First Amendment protection as a
"distributor of publications." As a result, the Stern court concluded
that it is "evident that Delphi's online service must be analogized to
distributors such as news vendors, bookstores and libraries." The court's
statement is an important application of the Cubby holding. Whereas the Cubby
court went through a number of factors to determine the independence of
CompuServe from the content provider, the Stern court took it as
"evident" that a subscriber-participation forum (an online bulletin
board discussion area) is like a "news vendor, bookstore or library."
This is a potentially important conclusion, because holding that message forums
are like a news vendor, bookstore or library could insulate sysops from liability
for the actions or statements of their users on such message forums.
(In contrast, the Stratton Oakmont court held that Prodigy was the publisher
of its message forum, exposing Prodigy to significant liability for defamation.
If the Stratton Oakmont court had considered the analysis in Stern, the
Stratton Oakmont court might have considered more deeply the import of its
conclusion.)
After sifting through analogies to find the right one, the Stern court
stated that the discussion forum was "a newsworthy service similar to a
letters-to-the-editor column in a news publication." This statement
indicates that the court's search for an analogy had become muddled.
Letters-to-the-editor columns are subject to completely different sets of
rights and responsibilities under the law. The difference between a
letters-to-the-editor column and, say, a library is editorial control. Content
publishers such as newspapers have the power to control the content they
disseminate and therefore are legally required to exercise that editorial
power; their failure to do so can lead to legal liability. There are countless
cases in which newspapers have been held liable for defamatory statements
contained in letters printed in letters-to-the-editors columns.
In contrast, libraries and bookstores deal in a high volume of content
created by third parties. If libraries and bookstores were legally liable for
the content of the material they disseminate, these entities would have to
pre-review everything - an impossible task. As a result, libraries and
bookstores are generally absolved from liability for the content in the
materials they disseminate, in the absence of some specific reason why they
knew there was a problem.
The court's weak analysis regarding these analogies is compounded by the fact
that the court did not look to see how Delphi actually managed the Stern
discussion forum. Some online services, such as Prodigy, previously managed
their public discussion areas extensively, to the point that the Stratton
Oakmont court concluded that Prodigy exercised editorial control and looked
more like a letters-to-the-editor column. Other online services do not manage
their discussion forums at all, allowing users to disseminate content without
any control by the sysop, which looks a lot more like a library or bookstore.
The distinction between primary publishers (publications with
letters-to-the-editors columns) and secondary publishers (bookstores and
libraries) was not significant to the court's analysis. Either type of
publisher can claim the incidental use exception. However, the court failed to
realize how its choice of analogies might affect the application of these
analogies in the future. Indeed, in Stratton Oakmont, the court reached the
conclusion that Prodigy acted as a publisher of its message forum.
After analogizing online services to news vendors, bookstores, libraries,
and letters-to-the-editor columns, the court had yet more analogies to make. In
trying to deal with the fact that Delphi could be used for both serious (news
dissemination) and entertainment purposes, the court said "the proper
analogy is to a television network" in that television will broadcast both
news and entertainment, but that the television network is eligible to claim
the role of news disseminator only for its news component and not its
entertainment component. The court's reasoning is sound and accurate, but the
introduction of yet another analogy creates some confusion about exactly how
the court conceptualized the technology.
CONCLUSION
Concluding that Delphi was a news disseminator and that the advertisement
related to Delphi's role as news disseminator, the court awarded summary
judgment to Delphi under the incidental use exception, stating that there was
no factual dispute over the application of the incidental use exception to
Delphi.
While the case ostensibly dealt with a fine point of statutory analysis and
judicially created exceptions, the court's treatment of the issues was
significant and may have broad implications. More courts may recognize the
power of online services, BBSs, and Internet sites as legitimate competitors to
the traditional news media, even though these sites also support other, totally
unrelated functions. As online services gain legitimacy in the courts' eyes,
the courts should be willing to protect these services from the broad
limitations being considered by Congress and state legislatures. Furthermore, a
functional analysis of online services' liability, such as for the actions and
statements of their users, could also support the development of an increased
number of unmanaged user interactivity forums where the courts will recognize
the sysops' limited power to control content.
Unfortunately, the New York Supreme Court, just three weeks after the Stern
decision, reached the conclusion in Stratton Oakmont v. Prodigy that
Prodigy was a publisher of its online message forums. In reaching its
conclusion, the Stratton Oakmont court did not undertake the difficult factual
inquiry into the methods of control employed by the network. However, because
the Prodigy decision was more widely publicized than the Stern case, many will
hold it up as the latest and greatest statement on the matter.
In the end, the Stern case may indicate only that many courts are trying to be thoughtful and sensitive to the technology in weighing cases. As might be expected with new technology, early litigation will result in a mixed bag, but the Stern v. Delphi result is a relatively heartening decision for those seeking to protect the rights of computer networks and system operators.