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The law seems clear — an Internet service provider is not responsible for defamatory messages posted on its system. That’s what appellate courts and, most recently, the U.S. Supreme Court ruled in several cases over the past three years. In the latest case on May 1, the nation’s high court let stand — without opinion — the New York Court of Appeals’ ruling in Lunney v. Prodigy Services Co. that Prodigy was not liable for profane messages that an imposter attributed to the plaintiff. The issue has not risen to the appellate level in Connecticut but, in March, Waterbury Superior Court Judge Joseph H. Pellegrino followed the national precedent in Jane Doe et al. v. Lisa Oliver et al. Pellegrino held that the Communications Decency Act of 1996 creates a federal immunity from liability for an ISP — America Online in Oliver — that distributes defamatory statements originating from third-party users of the service. But Eddi Zyko, the plaintiffs’ attorney, plans to appeal the ruling. He predicts that the issue could find its way to the Connecticut Supreme Court. “The law ought to be structured so the individual has a right to a remedy and a powerful company should not be able to rule the system,” Zyko said. Zyko claims that AOL was negligent for its failure to maintain safeguards to prevent the defendants’ alleged defamatory statements from being transmitted over the Internet. But Pellegrino, citing Section 230 of the CDA, concluded that AOL is not a “publisher” of the alleged defamatory material. In Lunney, the New York appellate court stated: “The public would not be well served by compelling an ISP to examine and screen millions of e-mail communications, on pain of liability for defamation.” The court likened e-mail to a telephone call. Telephone companies are accorded a qualified privilege subject to the common law exception for malice, the court held. The court also held that Prodigy had no duty to police its bulletin boards, even if it reserved the right to exclude some objectionable postings. “The problem is that we don’t necessarily want online service providers to be screening every e-mail message and every posting to a website — or removing what could potentially be defamation,” said Paul Schiff Berman, who teaches two classes on cyberspace law at the University of Connecticut School of Law. “Should there be policing?” asked New Haven attorney John Letizia, an employment and health care lawyer who has handled several Internet libel cases. “Companies like AOL and Yahoo can’t be expected to police everything.” Stay tuned, Letizia said. The current law promotes the growth of the Internet, but as more people are defamed and more obscenity is purveyed on line, the laws will change to address the new technology, he predicted. “Many people don’t know about the HMO [Health Maintenance Organization] act,” Letizia said. “The entire act was created to foster the growth of HMOs. Now, HMOs are being sued.” “The early stage is the growth stage,” he added. “The government is still fostering the growth against policing. They’re protecting the portals.” RARE LAWSUITS Connecticut courts, like those in other states, are only beginning to tap the surface of Internet law. “I ran into a member of the plaintiffs’ bar,” Letizia said. “He said to me, ‘John, the only reason you’re not seeing more lawsuits is because we don’t know much about it yet. Give us a year and you’ll see us bringing these cases.’ “ Zyko’s case, Doe v. Oliver, probably will not have much precedential value — unless the state high court rules on the issue as to whether ISPs are immune from liability for defamatory material. In June 1997, Lisa Oliver allegedly sent defamatory e-mail from her Virginia home to 31 addresses in Watertown. Her alleged motive was to “get even” with the plaintiffs — a woman and her mother — because the younger plaintiff “stole her man,” according to the Doe complaint. The e-mail allegedly warned its readers that the plaintiff had sexual intercourse with several people and contracted herpes. Oliver and her sister, Shannon Oliver — accused of encouraging Lisa to send the e-mail — were sued for defamation. The plaintiffs also sued Steven Wexler, Lisa’s stepfather, and Roberta Wexler, her mother, for negligence for allegedly allowing their daughter to send the defamatory message from their computer. Lisa Oliver and the Wexlers have moved to dismiss the complaint for lack of jurisdiction. The plaintiffs have failed to establish personal jurisdiction over the defendants — Virginia residents with no “minimum contacts” with Connecticut, according to defense attorney briefs. “There’s no nexus between the people being sued [the Wexlers] and the sending of the defamatory message,” said James W. Cummings, the Wexlers’ attorney and a lawyer at Moynahan Ruskin Mascolo & Minnella in Waterbury. The Wexlers do not own the computer, and they don’t have an AOL account, he said. “You can’t police adult children 24 hours a day,” Cummings said. If the plaintiffs clear the jurisdictional hurdles, the question is whether the law of defamation applies to e-mail transmissions the same way it applies to printed and spoken words. Zyko declined to comment about the issue. He prefers to speak through his legal briefs, he said. E-mail is akin to a letter, said Joseph D. Garrison, a partner at Garrison Phelan Levin-Epstein & Penzel, PC, in New Haven, who practices employment law and has libel law experience. “I don’t know why sending an e-mail would be any different,” than sending a letter subject to libel law restrictions, he said. That may be true, Letizia said, but there’s one major difference — the fast and vast world of the Internet is the purveyor. Sending messages over the Internet — whether via e-mail or into chat rooms — is different because of the potentially wider audience and the supposed anonymity of the message, he said. “It’s the atmosphere,” Letizia said. “There is a heightened concern — a McCarthy-like concern in this area that you don’t see with a letter, phone calls and faxes, which are clearly the same way of conveying a defamatory statement.” WHAT ABOUT CHAT ROOMS? A more challenging problem not present in Oliver but fit for judicial resolution is whether an ISP — or an ISP user for that matter — could face liability for posting a defamatory statement in a chat room or on an Internet bulletin board. Most Internet providers contractually reserve the right to screen their messages. “If you come in with policing,” Letizia warned, “the only people who can afford to police are the bigger companies. That helps Microsoft and Yahoo.” In Lunney, the New York appellate court held that the service provider was not a publisher of an electronic bulletin board message. But the court noted that bulletin board messages present “more complicated legal questions” because of the “greater level of cognizance” their operators have over them. The CDA immunizes Internet service providers that voluntarily exercise editorial control. In 1997, the U.S. Court of Appeals for the Fourth Circuit affirmed a Virginia district court’s ruling — in Zeran v. America Online, Inc. — that the CDA immunizes Internet service providers from lawsuits holding them responsible for defamatory material they fail to screen. But Zeran leaves open the possibility that an Internet service provider could be responsible for espousing what it posts, essentially what a newspaper does when it publishes a story by one of its reporters. “If a service provider has established a relationship with a content provider you could say the ISP is like a content provider,” Berman said. Should the Internet user face liability for sending a defamatory message into a chat room, which is sometimes likened to a bar room conversation? Three elements of defamation are potentially present in a chat room conversation — a publisher, a false statement and a third party. But how badly can someone’s reputation be hurt? “The argument can be made that the norms of speech communication are different online,” Berman said. “The argument is that no one expects [chat room banter] to be true — they’re prone to exaggeration.” Cyberspace hyperbole is known as “flaming,” he said. The Internet also provides the target of defamatory statements a chance to respond quickly and in kind, he said. Defamation law may be an inappropriate means of redress when the insults begin to fly. Berman likened flaming to an argument between two persons on a busy street. “If you sued me for defamation, I’d say, ‘We were just on the street, it wasn’t serious,’ ” he said.

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