defamation liability of computerized bulliten board operators.txt

1000 HOWTOs for various needs [WINDOWS]

& Problems of Proof          (C) 1989 John R. Kahn             15
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         plant,   over   which   supervisory  personnel 
         exercise  greater supervision and control. The 
         costs  of  vigilance  are  small (most will be 
         incurred    anyway),    and    the    benefits 
         potentially   large   (because  employees  may 
         attribute  the  statements  to  their employer 
         more  readily  than patrons attribute graffiti 
         to barkeeps).68
         
         According  to  this  reasoning,  then,  the location and 
length  of  time the libel is allowed to appear plays an integral 
part  in  determining  whether  a given defendant has adopted the 
libel, and thus has published it.

         An  application  of  the foregoing analysis to the issue 
at  hand  highlights  the  need  for greater care in allowing the 
posting  of  electronic mail messages on a BBS. The Tackett court 
noted  that  while  the content of graffitti scrawled on bathroom 
walls  might be subject to healthy skepticism by its readers, the 
same  might  not be true for other locations such as interiors of 
subway  cars  or  manufacturing  plant  walls.69 If this is true, 
then  it  is  reasonable  to  assume  that  a  defamatory message 
displayed  in a forum for the exchange of ideas is more apt to be 
taken  seriously  by  its readers - especially when the libellous 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn             16
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message purports to be written by the subject of the libel.70

         Further,  the Tackett court indicated that the high cost 
of   repainting  bathroom  stalls  by  the  hour  outweighed  its 
perceptible  benefits. The same is not true for electronic BBSes, 
where  the costs of prevention are minimal in light of the threat 
of widespread harm to users' reputations.71

         2.   Damages

         Once  the plaintiff establishes that the SYSOP failed to 
act  reasonably in removing statements known to be libellous from 
his  BBS  or  in  negligently failing to prevent their appearance 
there,72  no  proof  of  special damages is necessary as libel is 
actionable  per  se.73 The state's interest in protecting private 
reputations  has been held to outweigh the reduced constitutional 
value  of speech involving matters of no public concern such that 
presumed  and  punitive damages may be recovered absent a showing 
of actual malice.74

         The  proper  gauge  of  liability  has again raised some 
questions.75  One writer has noted that if the burden of proof is 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn             17
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to  rest  on  the  plaintiff,  she  may  be  at a disadvantage in 
producing  sufficient  evidence  to demonstrate negligent conduct 
on  the  part  of  the  SYSOP.76  Solutions  to this problem have 
ranged  from  a  rebuttable presumption of negligence in favor of 
the  plaintiff77  to  adoption  of  a set of standards similar to 
those  set  out  in  the  Federal Fair Credit Reporting Act.78 In 
either   event,  damage  awards  for  computer  abuse  have  been 
addressed both by federal and state law.79

         3.   Suggestions

         Because  computerized  BBSes  are still a relatively new 
technological  phenomena, consistent standards for SYSOPs' duties 
have  yet  to  be developed.80 However, at least one users' group 
has  adopted  a voluntary code of standards for electronic BBSes, 
applicable  to  both  users  and  SYSOPs  of  boards  open to the 
general public:

         SCOPE:

         This  Minimum  Code  of  Standards  applies to 
         both  users  and  SYStem Operators (SYSOPs) of 
         electronic  bulletin  boards  available to the 
         general public.

         FREEDOM OF SPEECH AND IDEAS

         Each  user  and  SYSOP  of  such systems shall 
         actively   encourage   and  promote  the  free 
         exchange   and   discussion   of  information, 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn             18
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         ideas,  and  opinions, except when the content 
         would:
         -    Compromise  the  national security of the 
              United States.
         -    violate proprietary rights.
         -    violate personal privacy,
         -    constitute a crime,
         -    constitute libel, or
         -    violate   applicable  state,  federal  or 
              local   laws  and  regulations  affecting 
              telecommunications.

         DISCLOSURE

         Each user and SYSOP of such system will:
         -    disclose their real name, and
         -    fully  disclose  any personal, financial, 
              or  commercial  interest  when evaluation 
              any specific product or service.

         PROCEDURES

         SYSOPS shall:

         -    review  in  a  timely manner all publicly 
              accessible information, and
         -    delete  any  information  which they know 
              or  should  know conflicts with this code 
              of standards.

         A  'timely  manner'  is  defined  as  what  is 
         reasonable  based  on  the potential harm that 
         could be expected. Users are responsible for:

         -    ensuring   that   any   information  they 
              transmit  to such systems adheres to this 
              Minimum Code of Standards, and

         -    upon   discovering   violations   of  the 
              Minimum  Code of Standards, notifying the 
              SYSOP immediately.

         IMPLEMENTATION

         Electronic  bulletin board systems that choose 
         to  follow  this  Minimum  Code  of  Standards 
         shall  notify  their  users by publishing this 
         Minimum  Code,  as  adopted by the [Capitol PC 
         Users  Group],  and  prominently  display  the 
         following:
         'This  system  subscribes  to  the  Capitol PC 
         Users  Group  Minimum  Code  of  Standards for 
         electronic bulletin board systems.'81

         While  non-binding  on  publicly-accessible  BBSes,  the 
above  guidelines  furnish  sound  basic policies that all SYSOPs 
might  use in shielding themselves from defamation liability. Our 
hypothetical  at  the  beginning  of  this  Comment  described  a 
situation  where  a  malicious  intruder  was  able to access and 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn             19
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masquerade  as  a validated user on a BBS; the following are some 
additional  computer  security measures that the reasonable SYSOP 
could conduct to avoid that situation:

         a.   Special   "screening"   software:  One  writer  has 
suggested  discouraging  potential BBS misuse through programming 
the  BBS  to  reject  those messages containing common defamatory 
and  obscene  language;82  such a program would discard a message 
containing  any  of  those  terms and would presumably notify the 
SYSOP  of  their  presence.  Drawbacks to this procedure are that 
computer  programs cannot understand all the nuances of libellous 
messages83  and  would  thus  lead  to the rigid deletion of many 
otherwise legitimate messages.84

         b.   Unique    passwords:   A   more   fundamental   and 
economical  approach  would  be  for the SYSOP to both notify all 
new  users  about the potential for computerized BBS abuse and to 
encourage  their  use of a unique password on each BBS they call. 
This  would  have  the  practical effect of keeping a masquerader 
from   using  the  names  and  passwords  found  on  one  BBS  to 
wrongfully  access  and  masquerade on other BBSes. A drawback to 
this  procedure is that the truly malicious masquerader may still 
discover  a BBS' most sensitive user records by way of a renegade 
computer  program  called  a "trojan horse".85 However, one could 
speculate  that  the SYSOP acts reasonably in informing potential 
users of the existing threat and in helping them avoid it.

         c.   Encryption:  This  is  essentially  a  way  for the 
SYSOP  to make the users' passwords unique for them. The power of 
the  computer  allows complex algorithms to be applied to data to 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn             20
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encode  it in such a way that, without the key to the code, it is 
virtually  impossible to decode the information.86 This technique 
would  have  the  added  benefit of forcing the masquerader, upon 
accessing  the BBS with a trojan horse program, to search for the 
secret  decoding  algorithm  in  addition to the BBS' secret user 
files.  Indeed,  it  is  conceivable that a special encryption or 
password  could  be devised to allow only the SYSOP access to the 
BBS'   decoding   algorithm.   However,   encryption  involves  a 
significant  overhead  -  impractical  for most small, privately-
operated  BBSes - and is more frequently used to protect messages 
from  one  system  to  another  where  the  data is vulnerable to 
interception as it passes over transmission lines.87

         d.   Prompt  damage  control:  In  accord with Hellar,88 
the  Restatement  (Second)  of Torts,89 and possibly Tackett,90 a 
SYSOP  acts reasonably in promptly assisting the libelled user to 
partially  reverse  the  effects  of  the  masquerader's actions. 
Recall  that  in  those  instances  a  defendant was held to have 
impliedly  adopted  a defamatory statement by acting unreasonably 
slowly  in  removing  it  from his property once having been made 
aware  of  it.91 While it may be unreasonable to expect the SYSOP 
to  monitor  each message posted every day - especially where the 
defamatory  message  appears to have been left by the true user - 
it  is  not  too  much  to  require  the  SYSOP to quickly remedy 
security  flaws  in  his BBS as they are pointed out to him.92 To 
this  end, the SYSOP has several options. In situations where the 
defaming   user   libels  another  without  masquerading  as  the 
libelled  party,  the  SYSOP  could  simply  delete the defamer's 

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Defamation Liability of Computerized BBS Operators
& Problems of Proof          (C) 1989 John R. Kahn             21
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account.  In  situations  where  a  user  masquerading as another 
posts  a  libellous message, the SYSOP could publish a retraction 
to  all  his subscribers, urging them to use a different password 
on  each  BBS  they  call. Further, where a masquerader published 
the  libel,  the  SYSOP  should offer his full cooperation to the 
maligned  user  in  tracking down the time and date the libellous 
message  was  posted93  in  order  to  better  limit  the SYSOP's 
liability.

         Certain  BBS  SYSOPs  claim that holding them liable for 
information   appearing  on  their  BBSes  violates  their  First 
Amendment  rights by restricting their right to free speech94 and 
by  holding  them  responsible  for  the libel perpetrated by the 

From kadie Sat Oct 12 09:53:46 1991
To: cafb-mail
~Subject: Computers and Academic Freedom mailing list (batch edition)
Status: R


Computers and Academic Freedom mailing list (batch edition)
Sat Oct 12 09:53:27 EDT 1991

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