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At issue is a story about First Los Angeles Bank's Thomas Kempf that ran last February in Fortune magazine, a Time Warner publication. In the report, Kempf was accused of receiving bribes from a Los Angeles businessman later convicted of bank fraud.
The article, which detailed gifts Kempf allegedly received and characterized him as a "drunken [bank] president," was then published on Fortune's Web site. Kempf, who filed his suit January 23, has denied all of the charges raised in the article.
The case raises difficult questions about who bears responsibility for information published online--an issue that is arising with increasing frequency as the Internet continues to grow at phenomal rates. Robert Wilson, the attorney representing Kempf, said Time New Media, AOL, Prodigy, and EarthLink were named in the suit because "they were the online carriers of an article that was put out by Fortune" magazine.
A spokesman for Time Warner said the corporation had not been served with a suit by Kempf but added: "We are aware that there is supposedly a lawsuit." A spokesperson for subsidiary Time New Media, which oversees the online versions of its parent company's publications, said it does not comment on pending litigation.
EarthLink confirmed that it was a codefendant in the suit filed by Kempf. The national ISP features a link to Fortune's Web site off its front page under the heading, "Business and finance publications."
AOL and Prodigy representatives said they had no knowledge of the suit.
Regardless of the merits of Kempf's libel case against Time Warner, lawyers are skeptical that the Internet providers named in the suit will be held liable for the content that they link to on their sites.
"They don't need to take this terribly seriously," said Neil Shapiro, a First Amendment attorney. "The plaintiff is going to have a hard time demonstrating that any ISP is guilty of fault simply because it is the link between an individual and libelous content."
According to Shapiro, an ISP who links to libelous content is protected under the Telecommunications Reform Act, just like a phone company that would not be held liable for any slanderous information transmitted over its wires.
AOL has been the target of similar suits in the past. Last year, a Florida woman claimed AOL was responsible for pornography marketed to her son via the online service, and White House adviser Sidney Blumenthal named the online service in a $30 million libel suit against Matt Drudge, who publishes an online gossip column on the Web and AOL.
This week, Blumenthal reiterated that AOL should be held liable because Drudge was paid for the reports that the online service published, according to the Associated Press.
For Shapiro, the liability of an online publisher for the material posted on its site depends on whether they had "knowledge or control" over the information. "The ISPs aren't responsible for the publication of the story," he said.
In Stephanie's article above, Shapiro rightly stated that "an ISP who links to libelous content is protected under the Telecommunications Reform Act ". Although the ISPs have effective congressional immunity due to THE COMMUNICATIONS DECENCY ACT (?CDA?), it does not afford the ISPs moral immunity to their dastardly acts of turning blind eyes to the innocent victims of libel.
The ISPs are given given their immunity specifically under SECTION 230(C) OF the CDA. This immunity allows them to:
(1) remove offensive material without the risk of the original author suing them for interfering with his or her free speech or;
(2) leave the offensive material online without fear of a victim of libel suing them for doing so.
In an ironic twist of the CDA language, both (1) and (2) of 230(c) are paradoxically under the heading ?Protection for Good Samaritan blocking and screening of offensive material?. For those unfamiliar with the origins of the term ?Good Samaritan?, he is the guy Jesus spoke of who delayed his journey to assist a man who had been beaten by gang bangers and left for dead in the gutter. Thereafter the religious hypocrites crossed to the other side of the street to avoid him. Whereas the Good Samaritan transported him to a Motel 6, tended to his wounds and then paid the inn-keeper in advance to feed and accommodate him until the the Good Samaritan returned.
One would reasonably think that an ISP would exercise its immunity under section (1) and remove libelous posting once it has been brought to their attention in accordance with its moral obligation to be a good corporate citizen. Such actions would be in the spirit and intent of authors of the act (congress). It should be noted that the term ?Good Samaritan? is clearly emphasized in the act's heading with the use of ?quotes characters?. The exercise by an ISP of its immunity under part (1) should not be construed as the ?chilling? of free speech because the first amendment does not protect libel, slander, defamation or the invasion of privacy. However, in the vast majority of cases the ISPs choose the low road by slithering behind part (2); they simply turn a blind eye to this abuse of free speech. They are thus inexorably defined as hypocrites by the proverbial text from which Congress' heading under the act is borrowed.
This ?low-tech? threat that goes largely unnoticed by the community causes of many millions of dollars in irreparable damage to business goodwill, personal reputation, and very significantly to the emotional well being of the human victims. Citizens that wish to use their free speech constructively should take the issue to their member of congress.
Michael Roberts
Investigator & Victim's Advocate
Rexxfield . com