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ISP Prodigy wins four-year court battle

Net libel action rests on 50 year-old case law

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Internet access providers in the US are not legally responsible for defamatory emails or newsgroup postings even though they may have carried them. This ruling in New York State draws a line under a libel suit that has dogged Net access provider Prodigy since 1994 when, according to one judge, some "infantile practical joker" pretending to be 15-year-old boy scout Alex G Lunney, posted a message threatening and defaming a named scout master. Lunney's father, a former prosecutor, filed the suit against Prodigy on his son's behalf, saying that the service provider was liable for the transmission of the scurrilous email. His case rested on the notion that since Prodigy used filtering software, it should have been able to control the content. In 1995, the courts ruled in favour of Lunney saying that online services can be sued for libel if the provider takes steps to control its subscribers' messages. Now that this decision has been overturned -- and openly criticised by the judges who heard the appeal -- it joins a mounting body of evidence supporting the assertion that a service provider is a "passive carrier" (much like phone companies) and therefore cannot be held responsible for messages ferried along its service. Ironically, the unanimous decision relied heavily on a case brought before the courts in the 1940s, enabling Prodigy's attorneys to make the analogy that the transmission of email is no different to the transmission of a telephone message, or a telegraph message. Although the ruling has no specific legal relevance for the UK, it has been welcomed by pressure groups in favour of civil liberties and freedom of speech. Had the decision gone the other way, it could have dealt a massive blow to the development of the Internet since service providers would have been made liable for all the messages they carried regardless of whether they knew about them or not. ®

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