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 Defamation on the Web: Whom Do You Sue?

 by  Shelley M. Liberto, Esq. (

 Copyright © 2000 by Shelley M. Liberto, all rights reserved

 The law of defamation addresses harm to a person's reputation or good name through slander and libel.  The Internet has made it easier than ever to disseminate defamatory statements to a worldwide audience.  For some time, courts have struggled with remedies for Web defamation.  The problem has been magnified by the difficulty in identifying the perpetrator and the degree to which Internet Service Providers (ISPs) should be held accountable for facilitating the defamatory activity.

One of the most recent cases addressing Internet defamation is the New York case of Lunney v. Prodigy.  In Lunney, an imposter opened several Prodigy accounts under different versions of Alexander Lunney's name. He then transmitted threatening email messages to a local Boy Scout master threatening to kill him, molest his sons and ``show your wife how a real Boy Scout pitches a tent."  The Scout master alerted the police who reported that Mr. Lunney was not the perpetuator.  Prodigy then terminated Lunney's account because of the transmission of  ``obscene, abusive, threatening and sexually explicit materials through the Prodigy service."  When Lunney advised Prodigy that it was an imposter who had opened the accounts, Prodigy apologized and notified Lunney it had uncovered four additional accounts opened under his name without Prodigy's knowledge.

             Lunney sued Prodigy seeking, among other things, damages for defamation by Prodigy inasmuch as Lunney was portrayed as the author of vulgar and threatening material due to Prodigy's negligence.  In its analysis of whether Prodigy was liable, the court was required to determine whether Prodigy was a ``publisher" or merely a ``distributor" of email messages.  The court concluded that although commercial online services such as Prodigy transmit email, they do not exercise editorial control.  The court stated:

            ``Prodigy's role in transmitting email is akin to that of a telephone company, where one neither wants nor expects to superintend the content of its subscribers' conversation.  In this respect, an ISP, like a telephone company, is merely a conduit."


 Bulletin board postings, as opposed to email, however, pose a special problem.  Prodigy, as other ISPs do, monitors and edits bulletin board content, thereby theoretically putting them into a category of a ``publisher" for purposes of defamation analysis.  If Prodigy took on the responsibility of monitoring and censoring its bulletin board postings, then it would also be liable for allowing to be published the vulgar content that injured Lunney's reputation.  The court, in a questionable analysis, concluded that Prodigy's power to exert editorial control did not alter its essentially passive posture as a mere conduit of information. The court's choice to avoid ISP liability for the content of bulletin-board messages and email distributed by its members is consistent with prior cases on the topic.  It does not, however, resolve the issue of how the member of an ISP such as like Mr. Lunney can obtain a remedy for defamation on the Internet against the true perpetrator.

Although ISPs under current case law are theoretically not liable for posting and transmitting defamatory information, they nevertheless are frequently joined as defendants in defamation lawsuits.  The reason is purely a practical one that uses the ``John Doe" method of suing an unknown wrongdoer.

Email addresses on their face do not necessarily identify the origin of the message.  Domain name registration services, however, can be used to identify at least the identity of the perpetrator's ISP.  By entering the upper level domain name on a registrar's Web site, the identity of the ISP of origin can usually be determined. But even if a victim is successful in identifying the wrongdoer's ISP, ISPs are reluctant to disclose the identities of their members.  To do so may expose them to claims of breach of contract, violation of privacy rights and negligence.  A controversial litigation tactic now comes into play.

Once the ISP has been identified, Internet attorneys will frequently file a lawsuit for defamation against the ISP, knowing full well that it cannot be held liable.  The lawsuit also names an unknown co-defendant as ``John Doe."  Once the lawsuit is initiated, the attorneys are then permitted to make discovery demands on the identified ISP to obtain records and information that will reveal the true identity of the ISP's member who has been sending the offending email.   Once ``John Doe" has been identified with the help of his ISP, the ISP is usually dismissed from the lawsuit.  The plaintiff then proceeds against the wrongdoer as the only defendant.

Due to the novel methods in which defamation is perpetrated on the Internet, courts have been required to ``stretch" the law in both substance and procedure.  Although ISPs are theoretically immune from liability for defamation perpetrated by their members, they have been unable to escape being sued as a party to defamation lawsuits altogether.  On the other hand, being forced by a court order to reveal confidential customer information may actually help an ISP by immunizing it from liability to its own members.


Shelley M. Liberto is a Santa Ana, Calif.-based attorney whose practice focuses on software and Internet-related issues


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