defamation liability of computerized bulliten board operators.txt

1000 HOWTOs for various needs [WINDOWS]

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn              8
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used  without  knowledge of the password, usernames are generally 
public  knowledge  while  passwords are a closely-guarded secret, 
known only to the user and the operating system.28

         Teleprocessing:  This is defined as accessing a computer 
from  a remote location, usually over a telephone line or similar 
communications channel.29

         Uploading/Downloading:   For   purposes   of  exchanging 
computer  programs  or  electronic mail over the phone lines, the 
process  of transferring information from one's personal computer 
to  the bulletin board is called uploading. The reverse process - 
transferring  information  from  a  bulletin  board to a personal 
computer - is known as downloading.30

II. DEFAMATION LIABILITY OF COMPUTERIZED BBS OPERATORS

    A.   Computerized Defamation: Libel or Slander?

         Libel  is  the  "publication  of  defamatory  matter  by 
written  or printed words, by its embodiment in physical form, or 
by  any  other  form  of  communication  that has the potentially 
harmful  qualities characteristic of written or printed words."31 
Publication   of   a  defamatory  matter  is  "its  communication 
intentionally  or by a negligent act to one other than the person 
defamed."32  A  communication  is  defamatory  if it "tends to so 
harm  the reputation of another as to lower him in the estimation 
of  the  community  or to deter third persons from associating or 
dealing  with  him."33  The  difference between libel and slander 
has  traditionally  depended  upon the form of the communication: 
oral  defamation  generally  is considered slander, while written 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn              9
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defamation  is  generally  considered libel.34 The distinction is 
important,  because  libel  requires  no proof of special damages 
and  is  actionable  by  itself, while slander generally requires 
proof of special damages in order to be actionable.35

         However,  with  the  advent  of  electronic  media,  the 
traditional  libel/slander  distinctions  as  they apply to sight 
and  hearing are no longer valid. For example, passing defamatory 
gestures  and  signals,  though visible to sight, were considered 
slander;36  an  ad-libbed  statement  on  a  telecast impugning a 
person's financial status was found to be libel.37

         It  has been suggested that the real distinction between 
libel  and  slander  is  the  threat  and  magnitude  of  harm to 
reputation  inherent in the form of publication.38 Libel has been 
historically  associated  with  writings because (1) a writing is 
made  more  deliberately  than  an  oral statement; (2) a writing 
makes  a  greater  impression  to  the  eye  than  does  an  oral 
statement  to  the  ear;  (3)  a  writing  is more permanent than 
speech;  and (4) a writing has a wider area of dissemination than 
speech.39  These  four  qualities  inherent in a writing made the 
possible  harm  to  reputation greater than mere spoken words. In 
applying  libel  to  the  new  form of computerized communication 
used  on  BBSes,  the  potentiality  for  harm  to  reputation is 
significant,  and  should  again  be  considered  the controlling 
factor.

         In  our hypothetical situation, the user discovered that 
another  user  (the masquerader) had usurped her account name and 
password,  causing  her  great embarrassment and humiliation. The 

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& Problems of Proof          (C) 1989 John R. Kahn             10
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act  of  prying into and taking another's computer information to 
misuse  it elsewhere would indicate a certain deliberation on the 
actor's   part  to  spread  defamatory  messages.  Secondly,  the 
defamatory  message is displayed to other users on their computer 
monitors  in  the  form of electronic characters, making a visual 
impression.  Third,  this electronic defamation is more permanent 
than  mere  words  because  it is stored in the BBS' memory until 
erased  by the user or SYSOP. Finally, the message arguably has a 
wider  area  of dissemination than a one-to-one spoken defamation 
because,  as a message on an electronic BBS, it has the potential 
of  being  viewed  by  hundreds, perhaps thousands, of users each 
day.  Based  on these four criteria, the capacity for harm to our 
user's  reputation  due to the masquerader's activities is indeed 
great enough to be considered libellous.

    B.   Defamation Liability of the SYSOP

         Having  established  the  electronic  message  as  being 
libellous,   the  next  issue  is  to  determine  the  extent  of 
liability  for  the  SYSOP who unknowingly permits the message to 
be  communicated  over  his  BBS.  Case  law  indicates  that the 
SYSOP's  liability depends upon the type of person defamed and on 
the subject matter of the defamation.

         1.   Degree of fault required

         The  United  States  Supreme  Court has addressed modern 
defamation  liability  in  two  major decisions. Both conditioned 
the  publisher's  liability  on the type of person defamed and on 
the  content  of the defamation. In New York Times v. Sullivan,40 
the  Court  determined  that  in  order  for a public official to 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn             11
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recover  damages  in  a  defamation action, the statement must be 
shown  to  have  been  made  with  "actual  malice",  i.e.,  with 
knowledge  of  its  falsity  or  with  reckless disregard for its 
truth.41  Due  to  society's interest in "uninhibited, robust and 
wide-open"  debate  on  public  issues, neither factual error nor 
defamatory  content  sufficed  to  remove  the  First Amendment's 
shield from criticism of an official's conduct.42 

         The  Supreme  Court  further  elaborated  on  defamation 
liability  standards in the private and quasi-private sphere when 
it  decided Gertz v. Robert Welch, Inc.43 In Gertz, the publisher 
of  a  John  Birch  Society  newsletter  made  certain  false and 
inaccurate  accusations  concerning an attorney who represented a 
deceased  boy's family. The family had civilly sued the policeman 
who  murdered  the  boy.  In  rebutting what he perceived to be a 
secret  campaign  against  law  and order, the publisher labelled 
the  family's attorney a "Leninist" and "Communist-fronter".44 In 
addition,  the  publisher  asserted  that the attorney had been a 
member  of  the National Lawyers Guild, which "'probably did more 
than  any  other  outfit  to  plan  the  Communist  attack on the 
Chicago  police  during  the  1968  Democratic Convention.'"45 In 
publishing  these  statements  throughout  Chicago,  the managing 
editor  of  the Birch Society newsletter made no effort to verify 
or substantiate the charges against the attorney.46

         The  Supreme  Court  held  in  Gertz  that  while  First 
Amendment   considerations   protect  publications  about  public 
officials47  and about "public figures"48, requiring a showing of 
"actual  malice"  before  defamation  damages could be recovered, 

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& Problems of Proof          (C) 1989 John R. Kahn             12
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the  same  was  not  true for defamation suits brought by private 
citizens49,  a  group to which the attorney was held to belong.50 
Private  citizens  were  seen  as deserving more protections from 
defamation  than public officials or public figures, so they were 
not  required  to  show  "actual  malice"  as  a  precondition to 
recovery.51  The  Court  then left it to the states to decide the 
precise   standard   of   liability  for  defamation  of  private 
individuals,  so  long  as  liability  without  fault was not the 
standard.52

         By  Gertz,  then,  the appropriate standard of liability 
for  publicizing  defamation  of  private parties falls somewhere 
below  actual malice and above strict liability. The problem with 
defining  the defamation standard for computerized BBS operators, 
however,  is  a lack of uniform standards. In such circumstances, 
the   objective  "reasonable  person"  standard  will  likely  be 
applied  to  the SYSOP's actions.53 Several cases may be usefully 
applied by analogy.

         The  court  in  Hellar  v.  Bianco54  held  that  a  bar 
proprietor  could  be  responsible  for  not removing a libellous 
message  concerning  the  plaintiff's  wife  that appeared on the 
wall  of  the  bar's  washroom  after  having been alerted to the 
message's  existence.55  The court noted that "persons who invite 
the  public  to  their  premises  owe  a  duty  to  others not to 
knowingly  permit  their  walls  to  be  occupied with defamatory 
matter....  The  theory  is  that  by  knowingly  permitting such 
matter  to  remain  after  reasonable opportunity to remove [it], 
the  owner  of  the wall or his lessee is guilty of republication 

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of  the  libel."56  The  Hellar  court  then  left  the  ultimate 
determination  of  the bar owner's negligence to the jury.57 This 
holding  seems  to  be  in  accord with the Restatement of Torts, 
which provides:

         PUBLICATION:

         (2)  One  who  intentionally  and unreasonably 
              fails  to  remove  defamatory matter that 
              he  knows  to  be  exhibited  on  land or 
              chattels  in  his possession or under his 
              control  is  subject to liability for its 
              continued publication.58

         Contrarily,  however, the Ohio court of appeals in Scott 
v.  Hull59  found  that  the  building  owner  and  agent who had 
control  over  a  building's maintenance were not responsible for 
libel  damages  for graffiti inscribed by an unknown person on an 
exterior  wall.60  The  court distinguished Hellar by noting that 
in  Hellar  the  bartender  constructively adopted the defamatory 
writing  by  delaying  in removing it after having been expressly 
asked to do so:

         "It  may  thus  be  observed  from these cases 
         that  where  liability is found to exist it is 
         predicated  upon  actual  publication  by  the 
         defendant  or  on the defendant's ratification 
         of  a publication by another, the ratification 
         in  Hellar  v. Bianco...consisting of at least 
         the   positive   acts  of  the  defendants  in 
         continuing  to  invite  the  public into their 
         premises  where  the  defamatory matter was on 
         view  after  the  defendants  had knowledge of 
         existence of same."61

         The  Scott  court  held  that  defendants  could only be 
responsible  for publishing a libellous remark through a positive 
act,  not  nonfeasance;  thus,  their  mere failure to remove the 
graffiti  from  the building's exterior after having it called to 

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& Problems of Proof          (C) 1989 John R. Kahn             14
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their  attention  was  held  not  to  be  a  sufficient  basis of 
liability.62

         A  situation  similar to Scott arose recently in Tackett 
v.  General  Motors  Corporation.63  There, an employee brought a 
libel  suit  against  his  employer  for,  inter alia, failing to 
remove  allegedly  defamatory signs from the interior wall of its 
manufacturing  plant  after having notice of their existence. One 
large  sign  remained  on  the wall for two to three days while a 
smaller  one  remained  visible  for  seven  to  eight  months.64 
Instead   of   focussing  on  the  Scott  malfeasance/nonfeasance 
test,65   the   Tackett   court  considered  defendant's  implied 
adoption  of  the  libellous statement to be the correct basis of 
liability.66  While  saying  that  failure  to remove a libellous 
message  from  a  publicly-viewed  place may be the equivalent of 
adopting  that  statement,  and  noting that Indiana would follow 
the  Restatement  view "when the time comes,"67 the Tackett court 
held  that  the  Restatement  view could be taken too far. Citing 
Hellar, the court wrote:

         The  Restatement  suggests that a tavern owner 
         would   be   liable   if  defamatory  graffiti 
         remained  on  a  bathroom  stall a single hour 
         after  the discovery [Citation to Hellar]. The 
         common  law  of  washrooms is otherwise, given 
         the  steep discount that readers apply to such 
         statements   and   the  high  cost  of  hourly 
         repaintings  of  bathroom  stalls [Citation to 
         Scott].   The  burden  of  constant  vigilance 
         exceeds  the  benefits  to be had. A person is 
         responsible   for   statements   he  makes  or 
         adopts,  so  the  question is whether a reader 
         may  infer  adoption  from  the  presence of a 
         statement.  That inference may be unreasonable 
         for  a  bathroom  wall  or  the  interior of a 
         subway  car  in  New York City but appropriate 
         for  the  interior  walls  of  a manufacturing 

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Defamation Liability of Computerized BBS Operators