SECTION: VOICE OF THE BAR; Pg. 25
LENGTH: 654 words
HEADLINE: Prodigy Case Points Need for Cyber-Libel Law
BYLINE: Mark L. Mucci, Newark

Dear Editor:

An editorial in the Law Journal of June 26, 1995, noted with approval a court decision subjecting Prodigy Services, Inc. to liability for allegedly libelous statements made in a "bulletin board" maintained on that service ["Online on Trial," 140 N.J.L.J. 1225]. You agreed with the reasoning of the court that if Prodigy exercised any control at all over contents of posted messages (essentially, editing for "bad taste" or offensive language), then it could be held accountable for the libelous content of the material, even if couched in impeccably proper prose. I disagree with your assumption that " Internet freedom is not likely to be extinguished by the outcome" of this case, on several grounds.

I note that you have described those who may be concerned with the ramifications of this decision as "hackers and other partisans of cyberspace." I'm not sure if you meant this as a semi-derisive comment, but you should keep in mind who those "partisans" are. The "hackers" would probably be the least affected by this decision, while the more pedestrian users of computer communication may be greatly affected. I've deliberately sent this letter to the Editorial Board by way of your Internet address, since you, too, are a denizen, if not a "partisan," of cyber-space. To the extent that the decision of the court in the Stratton Oakmont case creates limits on the ability of everyone to communicate or exchange ideas by means of this very useful tool, you should be concerned.

You have accepted the view that by exercising certain control in order to prevent patently offensive material, Prodigy could be considered a "publisher" of the material. However, that conclusion only follows if you consider the online bulletin board to be analogous to a newspaper. Another term for these computer discussion areas is "forum," conveying the notion of a marketplace of ideas. If the forum, instead of the newspaper, analogy is applied, I suggest that Prodigy's "good taste" requirement should not carry with it the baggage of liability for the content of the individual speakers' statements. Put another way, if a landowner made his property available for individuals to express their views, on the condition that no indecent language be used on that property, would you applaud a court ruling holding that landowner liable for the speech of those who took advantage of that forum?

I would also suggest that the line is not as bright in this regard as you would like to assume. Computer service forums and internet resources have value as vehicles for the free exchange of ideas, unrestricted by the requirement that the speaker and the hearer come together at the same time or in the same place. To the extent that the Stratton Oakmont decision causes any curtailing of this very useful, and still developing, resource, it will have a chilling effect.

Furthermore, if computer services cannot exercise reasonable measures to check for offensive language or content, this may encourage those who are calling for federally-imposed restrictions on, and criminal penalties for, such content. For example, if Prodigy is liable because it uses a "screening program" to check language, what liability will accompany use of new generations of filtering software, which have been proposed as an alternative to federally-mandated censorship?

The existence of new and powerful means of communication, and the need to encourage and not discourage their availability, requires the legal community to take a step back and evaluate the true nature of this medium. Perhaps we need a new classification for this medium, somewhere on the scale between the agora and the editorial page. If we limit our thinking, and simply equate words on a screen with words on a page, we may find that we've placed too many restrictions on a valuable resource.

EDITOR-NOTE: The Editorial Board Chairman replies: Mr. Mucci's letter misses the point. Prodigy claimed to be "family-oriented" and to protect customers' delicate sensibilities from nasty stuff, including defamation and pornography. It should not be able to tout general control over content and then evade liability on grounds it did not exercise control over a particular instance of speech. Robert A. Carter