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High court asked to hear AOL suit

A man who was allegedly harmed by a false statement posted on AOL wants the Supreme Court to make ISPs responsible for content on their sites.

The Supreme Court is being asked to hear a case that could place Internet service providers back in the liability line of fire.

A man who was allegedly harmed by a false statement posted on America Online wants the high court to put Net service providers on the hook for negligence if they don't swiftly remove criminal or defamatory material once alerted.

Kenneth Zeran sued AOL in April 1996 after an unknown member posted a message on the service misrepresenting Zeran as the seller of T-shirts with offensive phrases about the tragic Oklahoma City bombing, such as "Finally a day care center that keeps the kids quiet--Oklahoma 1995." Court documents state that Zeran neither sold nor was affiliated with the T-shirts. But the message was posted on AOL more than a month and publicized by an Oklahoma radio station, resulting in the harassment of Zeran.

Both the U.S. District Court in Virginia and the Fourth Circuit Appeals Court ruled that AOL was not liable. The courts cited the so-called Good Samaritan provision of the Communications Decency Act, which states that interactive computer services can make voluntary, good-faith measures to remove obscene, lewd, harassing, or otherwise objectionable material, but should not subsequently be "treated as the publisher or speaker" of the content posted by a third party.

In appealing to the nation's high court in March, 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. They are seeking an interpretation of the provision that would hold ISPs liable if they have knowledge of illegal content or libelous messages and don't remove the material.

"AOL was given notice that information was bogus and damaging and it has a duty to prevent that material from being distributed," John Edwards, one of Zeran's attorneys, said today.

"They should be liable for distributing illegal material after being given notice," he added. "We're asking the Supreme Court to interpret the statute because it has far-reaching implications. If the [lower-court ruling] stands, no one can go to court and force ISPs to block injurious material--they will be immune."

As the country's largest online service provider, AOL has been the testing ground for ISP liability issues. The industry--and some courts--assert that ISPs are no different from telephone carriers and are mere conduits of information.

AOL has won two court battles based on the Good Samaritan statute. Most notably, it was dismissed in April from a $30 million defamation suit filed by a White House adviser against the service provider and online gossip columnist Matt Drudge.

A Florida woman lost her case against AOL, in which she alleged the service "allowed" a subscriber to distribute pornographic pictures of her 11-year-old son. The woman said AOL ignored her complaints and did not adequately police customers. However, in June the district court sided with AOL, once again citing the CDA.

In a brief filed last week, AOL contended that there was no need for the Supreme Court to hear the case because the appeals court was correct, and there were no constitutional questions at stake.

"The Court of Appeals recognized notice-based liability would have a chilling effect on speech over interactive services," the AOL brief states.

Holding providers liable upon notice of a defamatory statement would encourage censorship, the Court of Appeals said in its opinion issued in November.

"If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement--from any party, concerning any message," the ruling states. "They would have a natural incentive simply to remove messages upon notification, whether the contents were defamatory or not."

However, ISPs have policed content, and increasingly restrict access to certain material based on consumer complaints or their own terms-of-service agreements. For example, last September AOL took down a subscriber site that focused on serial killers.

Proponents of the CDA, part of which was struck down by the Supreme Court last summer, say the intent of the Good Samaritan clause was to further facilitate ISPs in the removal of obscene or objectionable online content and child pornography.

"No one imagined that it would be used to escape responsibility for the material generated in the Zeran case or child pornography," said an aide to Sen. Dan Coats (R-Indiana), who cosponsored the CDA.

"We wanted to encourage responsible corporate citizenship," added the aide. " It would be a gross distortion of the definition of 'Good Samaritan' to say a Good Samaritan is someone who is aware of criminal activity and chooses to turn the other way."

Some legal experts say Net service providers have a right to wade in the murky waters of content restriction without subjecting themselves to liability.

"ISPs are private services and they have the contractual right to take down anything they want," said Jim Butler, an intellectual property attorney for Arnall, Golden & Gregory who also represents the Association of Online Professionals.

In the case of Zeran, it would have been a smart business decision for AOL to pull the defamatory message, Butler said. The danger, however, is the precedent of any court decision that slams AOL for not acting upon notification that illegal or damaging material exists on its network.

"It's a slippery slope," he said. "The problem is that you're going to start putting the service provider in the position of checking hundreds of messages a day, and making a judgment call. The ISP would have to hire a whole team of lawyers to do that."

Other Net law analysts say the entire CDA was poorly written, including the liability provision.

"This law is the product of a lot of last-minute, back-room haggling," said Lance Rose, author of NetLaw.

Most of the negotiations surrounding the CDA focused on a provision outlawing the online transmission of indecent material to minors--which the high court threw out. ISPs took the opportunity to push for safeguards based on concerns stemming from Stratton Oakmont vs. Prodigy, in which a court held the provider liable for a user's defaming postings because of Prodigy's ongoing practice of controlling content in its forums.

"And these judges [in the Zaren case] are giving ISPs de facto common-carrier status," Rose added. "It raises the important question of when an ISP is the only entity in the position to prevent a wrong, are we absolutely prepared as a society to say that it has no obligation to act--even under the most obvious conditions of harm and when it has the ability to prevent that harm?"

Congress has since gone back to the drawing board when it comes to restricting children's access to adult material. It needs to do the same with ISP liability issues, Rose said.

Federal lawmakers are beginning to set the tone for ISP liability in the copyright arena, which echoes Zeran's case in part.

Two weeks ago, the Senate passed legislation to limit providers' and Net directories' accountability for third-party copyright infringements, unless they have knowledge of such activity or gain financially from it. The bill's safeguards only apply if ISPs act "expeditiously" to remove illegal copies of intellectual property when they have knowledge of or are made aware of the infringement.

Even so, copyright violations and defamatory messages are apples and oranges, Butler said, meaning any law Congress passes in this area would not support a case like Zeran's in the future.

And these conflicting ISP liability standards will only make things more complicated, Rose added. "It would be nice if you had one law that set liability standards for a company in the digital transmission business, and that set standards across all legal lines," he said.