Prodigy Communications
Corp. Monday said that a New York Appellate Court has found the ISP not
responsible for a rogue member’s misuse of its service.
Prodigy member Alexander Lunney said an unidentified person impersonated
him, sending profane e-mail and bulletin board messages bearing Lunney’s
signature. Lunney maintained Prodigy failed to take appropriate action in
the incident.
In its unanimous decision, the court labeled the perpetrator as “some
infantile practical joker with access to a computer,” and said that “the
charade was, as they say, crude but effective,” but “Prodigy cannot be held
legally responsible for it.”
Citing prior rulings protecting telephone and telegraph companies, the
court noted “Prodigy had no participatory function” in the transmission of
the offensive messages.”
“Even a telecommunications company, which in some measure participates in
the transmission of a libelous message, cannot be held liable unless it
knew that the message was in fact libelous — a circumstance
which will rarely, if ever, be proved. The common law privilege which
benefits telegraph companies must apply to Internet service providers as
well. E-mail is, in substance, nothing but an updated version of the
telegraph.”
Claiming victory, Marc Jacobson, Prodigy’s senior vice president for
corporate development and public policy said the decision confirms the
Internet is a medium where freedom of expression is supported and
encouraged.
“The court also made clear that Prodigy is not a publisher of e-mail sent
through its system or messages posted on electronic bulletin boards.”
Prodigy counsel Michael J. Silverberg, of Phillips Nizer Benjamin Krim &
Ballon LLP went further.
“If Internet service providers were required to screen all transmissions
for possibly libelous content, the field of online communications would
come to a halt. This well-reasoned decision rejects that scenario and lays
down the clear principle that providers are not liable for a transmission
when they do not participate in it actively or actually know it is false.”
