Legal Research on Usenet Liability Issues
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Tue Jan 22 16:30:24 AEST 1985
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Legal Research on USENET Liability Issues
The USENIX Board of Directors decided that more solid information on the
legal issues relating to USENET activities was needed by the UNIX community.
We arranged with our lawyers for them to supervise legal research into the
issues, with the results of this research to be disseminated to our membership
via publication in ;login: and a presentation at the Dallas USENIX conference.
The memorandum which Ms. Shulman prepared is printed below.
Lou Katz
______________________________________________________________________________
To: Lou Katz
From: Gail H. Shulman
Date: November 9, 1984
Re: Scope of liabilities arising from the USENIX satellite-transmitted news
service.
Introduction
Computers frequently communicate with other computers through the tele-
phone system. USENIX might like to set up a computer facility to which indi-
vidual computer users could transmit messages, and from which these messages
would be transmitted through a satellite, thereby obviating most of the need
for the telephone system. In the proposed USENIX service, these communica-
tions could be directed and available only to authorized users of the service
indiscriminately (the service hereinafter referred to as "USENET" and its con-
tents as "NEWS"). It would be, in essence, an electronic bulletin board.
USENIX has not yet defined its role in this service. It would like to
assist in the maintenance, growth and development of USENET by providing lower
cost alternatives to the current system as the means for the transmission of
messages in interest to UNIX users. For obvious reasons, however, USENIX
would like to minimize its potential liabilities. Consequently, this memoran-
dum will address the following issues:
1. What are the potential liabilities of USENIX as the provider of the
USENET service?
2. What are the potential liabilities of the individual NEWS senders in the
proposed system?
3. How may USENIX effectively minimize its liabilities in the new communi-
cation system?
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Discussion
I. What are the Potential Liabilities of USENIX as the Provider of the USENET
Service?
The issue of USENIX's liability with regard to the proposed communication
system cannot be answered definitively. There is no clear precedent which
indicated the legal standards to which USENIX will be subject. However,
through analogy to other communication systems, we can speculate about the
scope and extent of USENIX's liability and can propose possible methods of
protection.
Communications entities are held to different standards of responsibility
depending upon their activities and the extent to which they control the con-
tent of the messages they distribute. Newspapers, broadcasters, common car-
riers, computers and various combinations thereof (i.e., electronics mail,
cable television, videotex and telex) each owe different legal duties to the
public. In order to determine the standards to which USENIX will be subject,
one must first analyze USENIX's purpose and function in providing the service.
Since USENIX's proposed system would make use of the radio frequency spectrum,
over which the Federal Communications Commission ("FCC") has exclusive jurisd-
iction, this analysis must also assess how that federal agency would regulate
the service.
Under the Communications Act of 1934 as amended (the "Communications
Act"), USENIX might be classified either as a broadcaster, as a common car-
rier, or as a special entity treated on an ad hoc basis. The Communications
Act defines broadcasting as the "dissemination" of radio communications
intended to be received by the public, directly or by intermediary of relay
stations.[1] Radio and television are the most obvious examples of broadcast-
ing. Broadcasters' signals are transmitted into space for anyone to receive,
and broadcasters have control over the content of their own programming. In
contrast to broadcasters, common carriers provide communications services to
the public at large, and their customers control the content of their mes-
sages.[2]
Broadcasting and common carriage are the two traditional means of commun-
icating by means of the radio frequency spectrum. Changes in technology, how-
ever, have begun to blur distinctions within the field of telecommunications.
As is true in most other areas, the law is slow to adapt to and change with
these new developments. As just one example, Congress passed the Communica-
tions Act in 1934, and it therefore contains no mention of cable television
systems. Consequently, there has been a heated debate over the classification
and regulation of cable television. The result of that debate is that it is
regulated neither as broadcasting or as a common carrier service, but as an
adjunct to the nation's broadcasting system with its own special rules and
regulations.[3]
One task in the analysis of ultimate liability for USENET is to identify
the like classification of the service for purposes of FCC regulation. The
difficulty is that USENET, being part telecommunications and part computer
service is neither fish nor fowl, neither broadcaster nor common carrier. The
classification of USENET is therefore not self-evident. The Court of Appeals
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for the D.C. Circuit recently addressed the regulatory problems posed by the
growing interdependence of telecommunications services and computer technolo-
gies.[4] The Court determined that the provision of transmission capability
over a communications medium with little or no interaction by the provider
with customer-supplied information, constitutes common carriage.[5] However,
the Court held that services such as USENET which combine basic transmission
capacity with computer processing applications which act upon the format or
the content of a subscriber's transmitted information, are non-common carrier
activities and are as yet not classified.[6]
The classification of USENIX's USENET service in the proposed communica-
tion system, although uncertain, is nonetheless critical to the determination
of USENIX's potential liabilities. The key issues involved in categorizing
USENIX as a broadcaster, common carrier or special entity are (i) to what
extent will USENIX control the content of the information it transmits?; (ii)
are the transmissions intended to be received by the public, or does the addi-
tional equipment necessary to receive the signals prevent a significant por-
tion of the populace from receiving them?; and (iii) is USENIX acting purely
as a disseminator of NEWS?
Although there is no legal precedent clearly establishing USENIX's posi-
tion in the proposed communication chain, the current state of the law sug-
gests that USENIX is likely to be treated as a broadcaster if it controls or
is responsible for the content or timing of what is transmitted information;
or as a common carrier if it indiscriminately transmits information provided
by the public without exerting control over content or timing. It is also
possible that the law will treat this as a new and special entity without a
clear indication of its regulatory status. Given this uncertainty, USENIX's
potential liabilities are therefore difficult to predict.
II. Areas of Potential Liability
This segment of the discussion focuses on several areas of the law where
USENIX liabilities may arise. The classification of USENIX's function in the
proposed systems will, as noted above, determine the extent of such liability.
A. Defamatory Matter
Defamation is an invasion of an interest in reputation. The tort
involves a publication which is false, defamatory and unprivileged, and which
has a natural tendency to injure or which causes special damages. It consists
both of libel, which is a fixed representation, and slander, which is a publi-
cation by more transitory means. Broadcasters are held liable for defamatory
statements of third parties using their facilities even though they have no
knowledge of the defamation itself.[7] The rationale for holding broadcasting
to such a high standard of care is that:
". . . They are publishers more nearly analogous to a newspaper . . .
than to a telegraph company. They are not engaged solely in rendering
the service of transmission to those who seek it. For their own busi-
ness purposes they initiate, select and put upon the air their own
programs . . . and they cooperate actively in the publication."[8]
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In contrast to broadcasters, common carriers are purely transmitters.
Carriers are not involved in the content of publications. Common carriers are
therefore not held liable for defamatory transmissions published or expressed
by third persons unless they know of the transmission's defamatory charac-
ter.[9]
As mentioned above, USENIX's liability for the defamatory content of its
transmissions will hinge upon whether the law will treat USENIX as a broadcas-
ter, a common carrier or a special entity. If USENIX is deemed to be a broad-
caster, then it may be held liable for all defamatory transmissions, even
though it had no knowledge of their publication. However, if USENIX is clas-
sified as a common carrier, then USENIX will not be liable for defamatory pub-
lications by a third person unless it has actual knowledge of the defamatory
nature of those publications. Of course, if USENIX is deemed a special
entity, no good estimate can be formulated as to its potential liability for
defamatory statements.
B. Obscenity
Obscenity is defined by state laws, which usually employ the terms
"lewd", "lascivious" and "indecent". The First Amendment of the U.S. Consti-
tution limits the scope of obscenity prosecutions to cases which, when taken
as whole, (i) appeal to the prurient interest in sex; (ii) portray sexual con-
duct in a patently offensive way; and (iii) do not have serious literary,
artistic, political, or scientific value.
Obscenity has been denied First Amendment protection because its content
is so offensive.[10] Broadcasting obscene language has been made a federal
crime.[11] Broadcasters are held to a high standard so as to deter the
transmission of material which society deems to be unworthy of Constitutional
protection.[12]
Common carriers are not held to as high a standard as broadcasters as
regards the transmissions of obscene material. The rationale for this dis-
tinction is that common carriers are not involved in the content of the com-
munications, and therefore cannot be responsible for that content. Common
carriers are only held liable for obscene transmissions if they know of the
obscenity. USENIX will be held to a higher standard if it is deemed to be a
broadcaster and a much lower standard if it is deemed to be a common carrier.
C. Other Potential Liabilities Arising From Content of the Transmission.
The analyses applied in the above sections on defamation and the law of
obscenity will also apply to other potential liabilities arising from the
nature of the content of the communications, such as a transmission constitut-
ing copyright infringement or a transmission violating an individual's right
of privacy. In these situations, the courts will generally hold the broadcas-
ter to a higher standard of care due to its extensive control of the content
of the transmission.
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D. Additional Content Regulations Applicable to Broadcasters.
The FCC has promulgated several regulations concerning responsibility for
the content of transmissions which apply to broadcasters alone. These include
prohibiting the broadcasting of information on lotteries, prohibiting the
broadcasting of obscenities, and prohibiting broadcasts which serve the pur-
pose of aiding fraudulent schemes.[13] Additionally, broadcasters are subject
to the "fairness doctrine", which requires that they present to their viewers
or listeners contrasting views on controversial issues of public impor-
tance.[14] And, Section 315 of the Communications Act specifies that the
broadcaster permitting one candidate for public office to use his or her
facilities must also afford equal opportunity to all other candidates for the
same office.[15]
E. Potential Liability for Faulty Transmissions.
If one contracts with a common carrier to transmit a message, the carrier
is required to use diligence in transmitting and delivering that message.[16]
This duty is based solely on contract law. The rationale is that the customer
pays for services and expects to receive an acceptable level of performance by
the carrier. If the carrier does not transmit the message diligently, it has
breached its obligations to the customer.
USENIX will not be concerned with this area of liability unless the third
party sender is providing consideration for the communication service and a
valid contract has been formed. We assume this not to be the case, since the
proposed transmission service may be offered free of charge, although there
may be fees for receivers.
F. Summary of USENIX's Potential Liabilities.
The extent and nature of USENIX's potential liabilities in connection
with the operation of USENET will hinge upon the classification of that ser-
vice as a communications medium. As common carrier, USENIX will have fewer
and less extensive liabilities than will USENIX as a broadcaster. However,
USENIX may be treated as a special entity, and as such it would be difficult
to predict its potential liabilities. USENIX appears to be more like a common
carrier than anything else, due to its minimal control over the content of the
information transmitted and its goal to act purely as a disseminator of NEWS.
III. Potential Liabilities of the Individual NEWS Senders
A. Defamatory Matter.
Under California law, libel is "... a false and unprivileged publication
by writing, printing, picture, effigy or other fixed representation to the
eye, which exposes any person to hatred, contempt, ridicule or obloquy, or
which causes him to be shunned or avoided, or which has a tendency to injure
him in his occupation."[17] Libel includes almost any language which, on its
face, has the natural tendency to injure a person's reputation.[18]
For purposes of this discussion, we will assume that an individual com-
puter user has sent NEWS which is false and unprivileged concerning another
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person, and that that information injures the person's reputation. The user
has committed the tort of libel if by sending this information as NEWS, it has
been "published".
Defamatory matter is "published" if it is intentionally or negligently
communicated to one other than the person defamed and other than the
defendant's spouse.[19] The form of publication may be a writing, printing,
picture, effigy, or other fixed representation to the eye.[20] Since the com-
munication network will transmit information to a third person for representa-
tion to the eye by a screen or printer, it will likely constitute a publica-
tion, and the user may therefore be deemed to have defamed the third party.
B. Statement Infringing Upon An Individual's Right of Privacy.
California law has established the right of privacy as the right to be
free from the wrongful publicizing of one's private affairs and actions which
are outside the realm of public concern.[21] The right of privacy is the right
to be let alone.[22]
There are several possible ways in which an individual's privacy may be
violated by means of the proposed NEWS service. These include (i) publicity
about private facts; (ii) fictionalization of an otherwise true story concern-
ing another; and (iii) publicity placing another in a false light.
We will assume that the information sent fits one of the above three
categories. The sender's liability hinges upon whether the transmission con-
stitutes a "publication". In defamation cases, "publication" means to commun-
icate to a single third party. However, in torts involving the violation of
the right of privacy, the element of "publication" is only satisfied where the
material is communicated to many people or the public at large.[23]
The element of "publication" would be satisfied in a right of privacy
action in the current or proposed USENET network system. Under this system,
written or printed information is communicated to many people. Any individual
who sends NEWS which infringes upon another's right of privacy may be liable
under tort law.
C. Copyright Infringement.
An individual NEWS sender may be liable for transmitting copyrighted
information via USENET. A copyright owner maintains several exclusive rights
in copyrighted work. Included in these rights is the exclusive right to
reproduce the copyrighted work.[24] Copyright infringement is established by
documenting that the copying was unauthorized.[25] An individual sender of
NEWS may be liable for copyright infringement if he or she transmitted copy-
righted information without authorization.
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D. Obscenity.
As noted above, the First Amendment does not protect material which is
obscene.[26] The federal and state governments have recognized a legitimate
interest in protecting the public by preventing obscene materials from enter-
ing the stream of commerce.[27] Similarly, states have a legitimate interest
in regulating the use of obscene material in local commerce and in public
places.[28]
California law regulates various forms of obscenity. Its Penal Code Sec-
tion 311.2 provides, in part, that:
"Every person who knowingly sends or causes to be sent, or brings or
causes to be brought, into this state for sale or distribution, or in
this state possesses, prepares, publishes, or prints, with the intent
to distribute, distributes, or exhibits to others, any obscene matter
is guilty of a misdemeanor."
This statute applies to any obscene book, magazine, newspaper, or other
printed or written material or any picture, drawing, photograph, motion pic-
ture or other pictorial representation or any statue or other figure, or any
recording, transcription, or mechanical, chemical or electrical reproduction
of any other articles, equipment, machines, or materials.[29]
Individual computer users who send obscene material over the proposed
communications system may be subject to the penalties of this statute or oth-
ers similar to it in other states. Other California Penal Code sections which
may give rise to liabilities on behalf of the individual computer users are
Penal Code 311.5 and 313.1 subdivision (a). These statutes prohibit the
advertisement and promotion or sale of materials represented to be obscene,
and the distribution or exhibition of harmful matter to a minor. Persons com-
mitting any of these offenses are guilty of a misdemeanor.
IV. Liability Of The Satellite Transmission Company For any Tortious
Transmissions Made By An Individual Sender From That Site
Those in control of the satellite transmission facilities by which an
individual may send or receive NEWS may be vicariously liable for any tortious
transmissions. Generally, tort liabilities for the acts of others does not
arise unless there is some relationship or other circumstance justifying the
imposition of such liability[30]. Some examples of these types of relation-
ships include (i) agency, employment or joint enterprise relationships between
the prospective defendant and the wrongdoer; (ii) statutory-imposed liability
on the prospective defendant (i.e. parental liability for a child's torts);
and (iii) the entrusting of a dangerous instrumentality to an improper per-
son.[31] In order for one to be held liable for the acts of another, one of
the above circumstances must be present. Similarly, the transmitter's vicari-
ous liability for any communications sent to a user by an individual wrongdoer
will depend upon whether one of the above-delineated relationships exists.
Three hypothetical situations follow concerning this general issue:
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A. An Authorized, Controlled Sender.
An information sender who is authorized and controlled by the transmitter
would probably be its agent or employee. The law would hold the transmitter
liable for wrongful transmissions by an individual authorized and controlled
by it operating under the scope of employment.
B. An Authorized Uncontrolled Sender.
Generally, when one has no control over the acts of another, no vicarious
liability will arise, None of the special relationships exist from which the
vicarious liability could originate. However, it is possible that the
employer may be liable for the employee's wrongful acts if the employer
entrusts the instrumentality to the employee who is otherwise unauthorized.
C. An Unauthorized Sender.
The transmitter would not be held liable for actions arising from the
transmissions by any unauthorized sender, since, there would be no privity of
relationship from which liability would arise. In conclusion, the liability
of the transmitter for any transmission made by an individual using the
transmitter's facility will only arise if a special relationship exists. Lia-
bility may occur to the transmitter if the individual sender is acting as an
agent or employee or if the site controller should have known it was entrust-
ing its facilities to an unauthorized person.
V. Summary
The proposed USENIX USENET service could subject USENIX to a variety of
legal obligations and liabilities under state and federal laws. In most
instances, the severity of these obligations and liabilities will depend upon
how the service is classified for purposes of FCC regulations. To the extent
that USENIX lacks control over the content of the messages it helps to
transmit, USENIX should be subject to fewer and less onerous legal burdens
than if it took an active role in reviewing and modifying those messages.
Nevertheless, USENIX cannot realistically hope to escape such responsibilities
entirely.
Footnotes
1. 47 U.S.C. 153(o).
2. National Assn. of Regulatory Utility Commissioners v. F.C.C., 525 F.2d
630, 631-42 (D.C. Cir. 1976).
3. United States v. Southwestern Cable Co., 392 U.S. 157 (1968).
4. Computer and Communications, Etc. v. F.C.C. (D.C. Cir. 1982) 693 F.2d
198.
5. Id.
8 December 1984 Volume 9, Number 6
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6. Id.
7. 87 Cal.L.R. 359; Restatement of Torts (Second) Chap. 24, 581(2).
8. Id. Comment on Subsection (2).
9. Lewis v. Time, Inc. (1979) 883 F.R.D. 455, 463; Restatement (Second) of
Torts, 581(1).
10. Roth v. United States (1957) 354 U.S. 476.
11. 18 U.S.C. 1464.
12. F.C.C. v. Pacifica Foundation (1978) 438 U.S. 726.
13. 18 U.S.C. 1304, 1464 and 1343.
14. Columbia Broadcasting v. Democratic National Committee (1973) 412 U.S.
94.
15. 47 U.S.C. 315.
16. 59 Cal. Jur.3d 22.
17. California Civil Code 45.
18. Moore v. Green (9th Cir. 1970) 431 F.2d 584.
19. Farr V. Bramblett (1955) 132 Cal.App.2d 36.
20. California Civil Code 45.
21. Smith v. National Broadcasting Co. (1956) 138 Cal.App.2d 807, 811.
22. Gill v. Curtis Publishing Co. (1952) 38 Cal,2d 273, 276.
23. Timperley v. Chase Collection Service (1969) 272 Cal.App.2d 697, 699.
24. 17 U.S.C. 106.
25. Sid and Marty Krofft Television v. McDonald's Corp. (9th Cir. 1977) 562
F.2d 1157, 1162.
26. Miller v. California (1973) 413 U.S. 15.
27. United States v. Orito (1973) 413 U.S. 139.
28. Penal Code 311 Subd. (b), 313 Subd. (b).
29. Restatement (Second) of Torts 315; Witkin, Summary of California Law,
Torts, 8th ed. 2928 649.
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30. Witkin, supra., at p. 2928 649.
31. Id.
10 December 1984 Volume 9, Number 6
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