huridocs-tech Suit Alleging Email Libel is Dismissed

Edited/Distributed by HURINet - The Human Rights Information Network
---------------------------------------------------------------------
## author     : bala@malaysia.net
## date       : 04.02.99
---------------------------------------------------------------------
              Suit Alleging E-Mail
              Libel Is Dismissed

Source: http://www.lawnewsnetwork.com/stories/jan/e010499g.html

              By Mark Hamblett
              New York Law Journal
              Monday, January 4, 1999

              An on-line service provider had no editorial
              control over the content of e-mail messages
              and bulletin board postings and cannot be held
              liable for defamation, a state appeals court
              has ruled.

              A unanimous, four-judge panel of the Appellate
              Division, Second Department dismissed the
              complaint filed by a Boy Scout in Alexander G.
              Lunney v. Prodigy Services Company, issued
              Dec. 28.

              The case began in 1994, as the court noted,
              when "an infantile practical joker with access
              to a computer" sent a Boy Scout leader a
              threatening e-mail message in the name of
              15-year-old Boy Scout Alexander G. Lunney.

              Mr. Lunney's Scout Master was told of the
              e-mail message and went to the teen's home,
              where he confronted him in the presence of his
              mother.

              To make matters worse, Prodigy wrote Mr.
              Lunney and said his account with the on-line
              service had been suspended because of his
              transmission of "abusive, obscene and sexually
              explicit material".

              The company was later forced to apologize when
              it discovered that several fictitious accounts
              had been opened in Mr. Lunney's name.

              Mr. Lunney filed suit in December 1994
              claiming libel, negligence and harassment. He
              later amended his complaint to encompass two
              bulletin board messages from "the practical
              joker" and a claim of intentional infliction
              of emotional distress.

              He also alleged that internal bookkeeping
              entrys and handwritten memos described him as
              a delinquent who had committed credit card
              fraud and transmitted obscene material.

              Westchester Supreme Court Justice Joan B.
              Lefkowitz denied Prodigy's motion for summary
              judgment on Jan. 18, 1998.

              The Second Department reversed. Writing for
              the court, Justice Lawrence J. Bracken said
              the applicable precedent was the 1974 Court of
              Appeals decision in Anderson v. New York
              Telephone Co. (35 NY2d 746).

              TELEPHONE ANALOGY

              In Anderson, the Court drew a distinction
              between telegraph companies, where employees
              directly participate in the transmission of
              messages, and the phone company, where callers
              directly communicate with listeners.

              Justice Bracken said that Prodigy is "by far"
              more analogous to a telephone company than it
              is to a telegraph company. And even in the
              case of a telegraph company, he said, a
              qualified privilege exists that requires proof
              of actual malice.

              The appellate panel disagreed with the holding
              in Stratton Oakmont Inc., v. Prodigy Services
              Co.(Sup Ct. Suffolk County, May 24, 1995),
              where a defamatory posting on the company's
              financial bulletin board was held actionable.
              The court in Stratton Oakmont ruled that
              Prodigy "exercised editorial control" over the
              bulletin board "to the extent that it could be
              considered the publisher of the defamatory
              posting."

              Justice Bracken, though, noted that it was
              impossible for online services to have any
              meaningful control over bulletin boards, so
              Prodigy should not have been held liable in
              the earlier case. In any event, the judge said
              that Prodigy made no attempt to control the
              bulletin board at issue in the Lunney case.

              And Justice Bracken said it is obvious that an
              on-line service cannot maintain editorial
              control over "all of the e-mail sent by its
              subscribers."

              Finally, he noted that the internal Prodigy
              memoranda were shielded by the common interest
              privilege.

              Justices Sondra Miller, Cornelius J. O'Brien,
              William D. Friedmann concurred in the
              decision.

              Michael J. Silverberg and Bruce J. Turkle of
              Phillips, Nizer, Benjamin Krim & Ballon were
              the attorneys for Prodigy.

              Mr. Lunney was represented by his father, J.
              Robert Lunney, and Phillip C. Landrigan


----------------------------------
Send mail for the 'huridocs-tech' list to 'huridocs-tech@hrea.org'.
Mail administrative request to 'majordomo@hrea.org'.
For additional assistance, send mail to: 'owner-huridocs-tech@hrea.org'.
Archives of previous messages posted to the list can be found at:
http://www.human-rights.net/huridocs-tech.