Supreme Court backs AOL

The Supreme Court handed America Online a significant victory today by refusing to hear a case that accused the largest online service of liability for material posted on its system.

The case, monitored widely by the industry and civil rights groups, was brought by Kenneth Zeran, who sued the company after an unknown AOL member posted defamatory messages about him. By deciding against hearing the case, the Supreme Court lets stand a lower court's ruling in favor of AOL.

Today's decision "sets an important precedent that's encouraging free speech on the Internet," said George Vradenburg, AOL's senior vice president for general counsel. "It means Internet service providers are not liable for the speech that flows through their systems. The contrary result would have meant that Internet service providers would have had to self-censor.

"It would have provided a crushing blow to free speech on the Internet," he added. "It would have shut down a great deal of communication."

In earlier decisions, the U.S. District Court in Virginia and the 4th Circuit Appeals Court ruled that AOL was not liable for postings by anonymous individuals who misrepresented Zeran as the seller of T-shirts with offensive phrases about the Oklahoma City bombing, such as "Finally, a day care center that keeps the kids quiet--Oklahoma 1995." (See related story)

Zeran sued AOL in April 1996 and appealed the case to the Supreme Court in March. Court documents state that Zeran neither sold nor was affiliated with the T-shirts. But the messages were posted on AOL for more than a month and publicized by an Oklahoma radio station, resulting in the harassment of Zeran.

Zeran contended that AOL did not respond adequately to requests to remove the postings. Vradenburg said today that AOL continually took down messages but wasn't able to keep up with all new postings.

The courts cited a so-called "good Samaritan" provision of the Communications Decency Act, which states that interactive computer services should not be "treated as the publisher or speaker" of content posted by a third party just because the provider makes voluntary, good-faith measures to remove obscene, lewd, harassing, or otherwise objectionable material. Although the court rejected a major portion of the CDA last year, the good Samaritan provision remained intact.

In appealing to the nation's high court, Zeran's attorneys argued that the good Samaritan statute was not intended to unequivocally exempt ISPs from liability, but rather to give them an incentive to eliminate illegal content.

David Sobel, an attorney with the Electronic Privacy Information Center, said he worried that the ruling gives online services too much leeway, especially since it comes on top of an April federal court decision to absolve AOL of potential libel for having run a controversial column by Internet gossip columnist Matt Drudge.

"I think there should be some degree of accountability on the part of online services as there is for other forms of media, and I have a problem with the idea that any Internet-based publisher should have greater protections than print media," Sobel added. "The results would have been different had this involved the New York Times. A distinction has been made that probably isn't justified."

Sobel said he understood the need for the Good Samaritan provision because, without it, online services were effectively barred from removing sites it deemed illegal or inappropriate, for fear of being held legally responsible for all postings.

"I think it's a matter of the online industry getting its cake and eating it too," he said. "The question is: Did Congress intend that in a case like Zeran, where the service is actually directed to defamatory material [but doesn't remove it] that the company would just throw up their hands and say we have no responsibility here...This was a knowing retention of defamatory material. By the same token, there's nothing in the way this provision has been interpreted by the courts to prevent willful retention of defamatory material."

Barry Steinhardt, president of the Electronic Frontier Foundation, hailed the ruling.

"The Supreme Court did the right thing but letting the lower court ruling stand," he said in an email interview. "Under federal law, ISPs like AOL have and, on the merits, should have immunity when they are merely acting as channels for their users' speech. Speakers should be held liable, not communications companies that cannot possibly be expected to monitor millions of messages and then apply complex laws that most lawyers do not understand."

Vradenburg emphasized that, despite today's decision, AOL intends to continue responding to complaints about potentially defamatory material posted to its site either by members or by content providers.

The decision, he said, puts "the responsibility on ISPs to, themselves, set some standards for what kind of speech will go inside their communities. But it's a matter for the ISP to take affirmative steps themselves, and not necessarily to be liable every time someone puts on some speech that is defamatory."

Even though AOL is legally in the clear--at least in this case--it is not necessarily absolved of responsibility in all cases.

The ruling comes at an especially auspicious time for the for AOL, along with the rest of the Internet industry: Politicians and government bodies are taking an especially hard look at regulating content on the Net. While some bodies, such as the Federal Trade Commission have advocated regulation, others, such as the Department of Commerce have said they want the industry to regulate itself.

And industry is clearly pushing to regulate itself, lately regularly announcing new initiatives aimed at staving off the long reach of government.