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D. Murali

A discussion on an Internet forum can be lively - but land the `Web publisher' in the eye of a storm, as in this instance.

IN New Jersey, there is a borough called Emerson with a population of about 7,000. The place is named after the famed writer, Ralph Waldo Emerson. But it was not he who was in the eye of the storm when the Superior Court of New Jersey Appellate Division heard a dispute over `Eye on Emerson'.

For, that's a Web site established by Stephen Moldow in 1999, to post the minutes of the borough council, report local government activities, and conduct public opinion polls, including "approval ratings of local elected officials".

Good effort, but what constituted the meat of the case is the discussion forum on the site where "any user could post messages, either with attribution or anonymously".

Some of these messages constituted "defamation, harassment and intentional infliction of emotional distress", felt Vincent Donato and Gina A. Calogero, two elected members of the Emerson Borough Council. So, they sued Moldow and "numerous fictitious parties" who had posted the offensive messages.

At the trial court level, Moldow was not considered liable for damages as a publisher, because of an immunity provided in the Communications Decency Act of 1996. But Donato and Calogero were in no mood to relent, and in due course, the case reached the Superior Court.

They were upset about the `negative messages' that were both personal and about official work. "Many were vile and derogatory in their language and tone," said the complainants, and the text of the court's order cites a few of these. Thus, one message claimed "Donato climbed a ladder to the author's bedroom window", another from `Doctor in the House' said, "Donato was emotionally and mentally unstable". A `Concerned Resident' seemed concerned that Calogero does `drugs'; and a message from `Investigator' averred that both D and C "use police reports against the residents".

Likewise, there were missives from `Voter', `Resident Informed', `Duped Again', `Tommy Boy' and so on, calling Donato "a `slippery slimy fish,' `slime of a thing,' `Hitler reborn,' an `evil bitter old man,'" and so forth, while `Jackie' and others called Calogero a `corrupt influence,' `Queen of Hate,' `witch,' `fashion violation,' `nut case,' and said she "hasn't told the truth since she was sworn into office".

Not surprisingly, the offended councillors wanted to know the real people behind the whimsical masks on message posts, and so they issued a subpoena to FreeTools.com, "which was the electronic host of the Eye on Emerson bulletin board" and sought "the Internet Protocol (IP) address of each anonymous poster." In response, the fictitious parties hired a counsel to quash the subpoena. "The American Civil Liberties Union and Public Citizen Litigation Group, by leave granted, intervened as amicus curiae." Trial court didn't find the chase meaningful, and eventually, Donato and Calogero too "abandoned their efforts" in this direction.

But they had Moldow as their target. He was liable as a publisher of the defamatory statements made by others, charged the councillors. He was "more than passive in his role as publisher, and had actively participated "in selective editing, deletion and re-writing of anonymously posted messages on the Eye on Emerson Web site and, as such, is entirely responsible for the content of the messages'," they asserted.

Though "technology is available to require users to register with the Webmaster prior to using the discussion forum message board and to identify themselves by name, address and e-mail address," Moldow's forum "allowed all users to post messages anonymously", argued the councillors. Another allegation was that Moldow controlled the content of the forum by `selectively deleting'; he was "quick to remove any negative message about himself". Citing precedents, they argued that in traditional media, such as newspapers and magazines, "the publisher of defamatory statements might well be exposed to liability for conduct such as that alleged against Moldow."

For Moldow, however, there was protection in Section 230 of the Communications Decency Act. It states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Along with this `general grant of immunity' is "the so-called `good Samaritan' provision" to encourage self-regulation.

Accordingly, no provider or user of an interactive computer service shall be held liable on account of "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

`Interactive computer service' is defined in the Act as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet "; and `information content provider' is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."

For the New Jersey court, Section 230 was coming up for debate for the first time, and it sought guidance from a plethora of federal Court decisions to conclude that Moldow was provider/user of `interactive computer service' and also an `information content provider' as regards his own postings. However, with respect to the anonymously-posted defamatory statements, Moldow could not be deemed an information content provider, ruled the court.

Moldow was not responsible "for the creation or `development' of the defamatory messages" stated the court, because the messages were "created by their authors" and `development' required "material substantive contribution to the information that is ultimately published." Deleting profanity, selectively deleting or allowing to remain certain postings, and commenting favourably or unfavourably on some postings, without changing the substance of the message authored by another, did not constitute `development', declared the court. Importantly, "selective editing and commenting are activities within the scope of the traditional publisher's function," clarified the judges Conley, Lisa and Winkelstein, knocking off the `bad faith' allegation brought in by the aggrieved councillors.

"For what avail the plough or sail, or land or life, if freedom fail?" is an Emerson quotation that underlines the value of freedom worth preserving in discussions too. If you think such Web forum is a scourge that deserves purging, here's another Emerson line: "Weed - a plant whose virtues have not yet been discovered."

Cases@TheHindu.co.in

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