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Legal Problems of the International Data Network in the light of the rights
of the individual and expression.
© Norbert P. Flechsig 1996
Content:
I. On line communication: market of worldwide information
and formation of opinion
1. Internet: The net of nets
2. IRC/ Newsgroups/Telnet/ FTP/Gopher and WorldWideWeb
3. International data networks: Symbol of a new
communication
II. Protection of rights of expression in on line
systems
1. Worldwide on line information and formation of
opinion on the one hand, legal classification on the other
- Internet and the right to be named
- Internet and the privilege as to ones’
own image
- Criminals switch to the Internet
- Is Internet radio broadcasting?
- Application of the “Bildschirmtext
- Staatsvertrages” (State Treaty)?
- Are the laws relating to the press
valid for the Internet?
2. Protection against defamatory and untrue statements
in the Internet
2.1 The making and distribution of statements
2.2 The law in American courts
- Decision in Daniel vs. Dow Jones
& Company
- Cubby v.Compuserve Inc.
- Stratton Oakmont Inc. v On-line
prodigy Services Co.
2.3. The law in England
2.4. The law in Germany
III. The liability of a telecommunication offerer
for the contents of statements
1. The conditions of liability for the telecommunication
offerer
2. Implications of tortious liability for statements
made on line
3. The need for discussion of access conditions for
offerers and users of the Internet services
3.1 Efforts being made in the USA, England and the EU
3.2 For the improvement of the protection of the rights of the
individual in Germany
I. On line
communication: market of worldwide information and formation of opinion
- or: the spider spins its web at increasing speed around the world.
Legal problems concerning the rights of expression and the individual in
international data networks have increased since the beginning of 1994 because
by commercialising the so called Internet the world has shrunk to a village.
Interconnected, in other words connected to the most distant computers on
earth, a person can log in easily from his or her PC at home via a telephone
line into a geographically remote data base. Terms such as BITNET, Telnet,
Usernet; Veronica, WAIS and WinNET, Compuserve, E - Mail, Gopher, HTML or
Hypertext Markup Language, http or hypertext transfer protocol, Mailbox,
Newsgroup as well as WWW2 are just a few technical terms which make the lawyer
insecure but which are known to or ought to be known to the user or surfer
in the international data network who wants to find his or her way in Cyberspace3,
this second artificial universe which exists next to our material reality.
In doing so the user will sometimes not even be aware that his quest for
information is probably leading him right around the world.
1. Internet: The net of nets - or: dial locally, act globally.
First and foremost the term Internet seems to require a more precise explanation in order to understand the following report:
The computer network was originally designed for the military use of Nato
and the Pentagon and after the end of the Cold War became open to the public.
Since then it connects almost all the larger states; it is growing worldwide
at the rate of several thousand users monthly. A well developed network of
Internet users and information offerers is available especially in North
America, Australia and Western Europe. The main functions of the Internet
are: the exchange between Internet users (two or three people exchange data
and programmes) ; the permanent availability of information for the general
public and information enquiries as well as the possibility of using ones
own or someone else’s computer in distant places and countries.
As an unbelievably quick and generally free of charge and not a proprietary
media, the Internet with its diverse services5 in all areas, holds a huge
information potential which is worth developing since obstructions to free
communication no longer apply.
The exchange of information in the Internet is communicated, among other means by so called E-Mail: The letter is typed into the computer and sent. Within a few minutes it reaches the addressee regardless of their location. As with any ‘normal` letter the receiver of course has to check his or her mailbox and read the messages. The major advantage of this exchange of thoughts without the need for paper lies in the quick and problem free dissemination of enquiries and information in the form of a general or specific ‘circular’, in which the knowledge of many participants can be used. The distributors necessary for this purpose can either be set up privately on someone’s own account or distributors available to everyone can be used. An E- mail address always consists of the receiver’s name and computer address. The address of the computer can be an informative combination of several words or numbers. It enables the computer network to route messages to the targeted computers from anywhere. This applies to everything explained below, whether it be WWW-, Gopher-FTP or Telnet addresses. An enquiry is also possible through the direct exchange of experiences with other Internet Users.
2. IRC/ Newsgroups/Telnet/ FTP/Gopher and WorldWideWeb - or: What you are looking for, will you find it?
The so called Internet Relay Chat (IRC8) enables several participants to communicate with each other concurrently. Each participant is assigned a nick name when logging into the IRC computer ( usually by starting the respective IRC- programmes). This nick -name is put in front of the user’s messages. In this way continual individual statements can be related to the respective participant.
Discussion Lists or so called mailing lists make it possible for many participants to be drawn into a particular topic and so available knowledge can be used in a better way. As the motto says: someone will know the answer. The received messages are then sent by computer (the Listserver) which processes the list, via a program (Listserv) automatically to every registered participant on the discussion list. On the whole the messages are stored in data bases from where they can be called up by the individual participant.
The regular participation in a discussion list (‘subscription’) is registered
by a simple message to the respective administrator or Listserver which automates
the administration to a large extent. Although a person can send information
via most discussion lists without having subscribed to them, there are also
instances when use is only permitted if the user is a subscriber.
There are lists accessible to everyone but also lists for specific groups
(closed discussion list). If information sent to a Listserver is automatically
distributed then this is known as an unmoderated list. In the case of the
not so widespread moderated discussion list the information is read in advance
once again and in particular circumstances will be edited or not distributed
at all.
Newsgroups are similar to the discussion lists, with the difference that a user places a message or enquiry and then waits for an answer to the message from the readers. Someone can of course read the messages that have accumulated, by means of the so called ‘Newsreader’ which contains all the Newsgroups accessible to it, in other words enabling access. All Newsgroups together form the so called Usenet. Synonyms for Newsgroups are Board; Forum; Conference or Area News.
Where the E-mail does not exclusively serve the individual communication from one user to another it is directed through the Newsgroups to the public.
With Telnet a user can log in from any computer worldwide into his or her personal computer at home and carry out actions by remote control. Typical examples of use are the data base queries and library enquiries. The principle is similar to the so called modem link: a continuous link to a foreign computer is established, orders typed in are transferred to the foreign computer and carried out there ( Juris, for example, functions in this manner). By means of Telnet many libraries and data bases which allow respective access can be checked for information. Through this it is possible for every Internet Surfer to leaf through the Library of Congress (USA) just as he or she is able to read the SPIEGEL on Sundays. For data bases which demand a fee an application has to be filed beforehand. The user then receives his or her user ID and a personal code.
With FTP ( File Transfer Protocol) it is even possible to send data in an arbitrary format or to copy it on to one’s own computer. FTP is suitable for the distribution of free programmes (freeware), shareware and data of all kinds, in particular texts files10.
Gopher is a menu controlled information system, which enables access to information on different computers. Through this worldwide information is immediately accessible for all users at any time: select, return or press the mouse button and the user is already in the next directory or is able to read a text. In this way announcements, lecture timetables, articles, legal texts, Security Council Resolutions, address lists, seminar lists, engagements and much more can be accessed. Graphics and sound recordings can be called up with the requisite programmes and computers. A big advantage of this system is the possibility of being automatically connected to other systems (Gopher/ FTP/Newsgroups/Telnet) as a whole or only to individual files, creating a worldwide information network consisting of the most diverse Gophers, FTP - sites, libraries and data bases.
The strength of the so called WorldWideWeb (WWW) lies in the fact that references within texts are possible ( so called “hypertexts”): foot notes and literary sources can be organised by pressing the mouse button and immediately calling up the corresponding quote in the original. In addition the “triple W” makes the incorporation of pictures in texts possible,providing an attractive presentation of the information. As with Gopher, connections to other systems (W3/Gopher/FTP/Newsgroups/Telnet) can be set up. For this purpose the so called URL (Uniform Resource Locator) is used providing an problem free and direct link to certain documents: real WWW-documents are called up via http: // (....).
3. International data networks: Symbol of a new communication - or “We all do it for the same reason everyone else does it, because everyone does it”.
Data networks not only serve existing interests, they themselves have partly become subjects of interest: Participation on the network serves no other purpose than to participate. If today more than 40 million Internet users are connected to the information network via over 4000 individual computers in over 159 countries worldwide, then this means that there is hardly any area which is not affected by this media. The White House in Washington also maintains a home page just like magazine guides and influential German newspapers and dailies to strengthen its on line engagements: it is possible to read on Sunday evening in the index of the Spiegel on the Internet what will be distributed in print the next day. In the same way that the Frankfurter Allgemeine newspaper and facsimiles from the Vatican library can be stored on the hard disk so too can digitalised versions of the Koran. Publishers are already anxiously posing the question: are digitalised nets endangering the printed word? This question also arises because Internet services are increasingly making contributions which are of poor quality and contain mistakes accessible to the public without any filtering mechanism such as proof readers with expertise in the field.
The Bavarian state government as well as the universities of Bayreuth, Heidelberg, Düsseldorf and Saarbrücken are connected to the net along with radio broadcasting stations which ‘keep the corpse cool in the mailbox’ by allowing the radio listener to help shape the radio program with this name. The local council of the SPD parliamentary group in Ulm is also pushing into the Internet like a Chinese pioneer in the kingdom of forgotten environmental problems, who against the wishes of the Government, wants to dessiminate ecological data and unfavourable information about the latest technologies via the Internet.Dissidents have discovered the new technology: subversion via the Internet. Researchers have already coined the phrase Telekratie which is supposed to mark the trends of polycultural autonomy of interests in a network movement opposed to linear political concepts.
The anti nuclear test movement is sending protest notes to Chirac’s mailbox; enough reason for the Student magazine “OneEuropeMagazin” published in Aachen, to keep a page on the world wide web free for anti nuclear test activities. Cyberporn in the red light district operates as digital intercourse. More and more Internet cafés are making the world a big meeting place: meeting places are popping up everywhere where guests can eat snacks and desserts while they surf the sea of information in the most diverse newspapers and bulletin boards and send messages by e-mail or use the different computer programmes. Whoever wants to be connected with the US space ship Endeavour during its voyage round the earth selects the address: http: // astro-2.msfc.nasa.gov.
Sects are also using the data network for their own purposes as are the nazis using the so called Thule-network. The holy war is raging on http://soc.religion.islam and a user can call Sarajevo on http://web.cnam.fr/sarajewo.
Whatever dynamism develops out of the possibility of the global network for the rights of expression - its economic dimension for Germany, Europe and the world - can only be guessed.
II. Protection of rights of expression in on line systems
1. Worldwide on line information and formation of opinion on the one hand, legal classification on the other
As noted, the use of modern means of communication makes it difficult for those affected, and for those seekers following the activities on the scene, to defend themselves against untrue statements of fact, other rights of expression, relevant facts or breaches of individual rights where they are related to public messages in the network. One of the biggest legal problems is the prosecution of a claim. It is often defeated in Cyberspace owing to a lack of jurisdiction and national boarders: distances on the international data network are of no importance. Because of the decentralised structure of the Internet there is no controlling authority. For the effective exchange of information, it is therefore necessary for the user to conform to certain unwritten rules in order to avoid infringements of the network operation. These rules, which have been casually developed by users and which have been made into a prerequisite for registration by the mailbox users are named the Netiquette. Breaches of the rules of the Netiquette, include the dispatch of unrequested advertisement leaflets or their placement in irrelevant discussion forums. Breaches often lead to public complaints (flames) or to countless protest e-mails. An example of the rules of etiquette are: read through each answer completely before sending; Be careful with abbreviations ( acronyms) which are not known to the discussion group or addressee and which are of no use there; avoid offensive or untrue statements.
Next to this Netiquette substantial legal infringements determine the future vision of the data highway. An example is the Nazi propaganda which is distributed worldwide by American right wing extremists without hindrance. The same goes for pornography which can be called up in an islamic household in the same way as “off shore systems” can be introduced for targeted defamation campaigns.
If one questions the legal impact of this new communication world many problems relating to the protection of the individual emerge. Terms such as Cyberrights and Netlaw are coined and especially in America, have already produced a lot of legal literature and have also led to court decisions relating to liability on the network.
The following facts give an idea, for example, of the dimension of the legal problems relating to the rights of the individual and expression:
- Internet and the right to be named
A particular problem emerges where Internet users take on a so called
domain name for their bulletin board system (BBS) and then occupy an address
on the Internet which is already occupied outside this media. Like the motto
“first come first served” resourceful participants look for digital name
tags. The Network Solutions Inc. which runs the Internet network information
center (InterNIC) had to process more than 10.000 domain applications in
1995. Often firms realise too late that Internet exists and then the wrangling
over names really begins. The European on line network will probably follow
the American example and give priority to brand names retrospectively. Whoever
has accessed with Mercedes.com or Bundestag.de will have to change his name.
- Internet and the privilege as to ones’ own image
On the Internet one can watch an increasing number of users, even solicitors
who, by means of so called home pages, publish information about themselves,
often with photos and personal information. The motivation lies in the enticement
of this new communication media to make contact with people all over the
world and to exchange ideas. What happens when picures of third parties who
do not consent are used. Can the infringing party claim that as it is a question
of a contemporary or of someone in the public eye,he is allowed to give millions
of people via home page an insight into their private life?
- Criminals switch to the Internet
Experts are warning of money laundering via the Internet, because according
to Ronald Noble of the US Finance Ministry - profits from drug trafficking
could be laundered by means of recently introduced Computer cash cards over
the worldwide data network as a result. All money deals which are transacted
using such cards have to be strictly controlled as a result. In Germany the
demand to combat computer criminality is also increasing, not just for criminal
punishment but also for the consideration of non penal measures.
Internet can become a deadly serious matter: The thirty seven year old American Girvie Davis who should have been executed on 17 May 1995 in Illinois USA, urgently pleaded his innocence on the Internet and demanded a judicial pardon. This was the first time the Internet was used for such a purpose. 200 users pursued the request and sent Governor Jim Edgar a message.
- Is Internet radio broadcasting?
Audio-on-demand does not exclude the Internet. Under the Internet address
http:// www. realaudio.com the user can listen to music on demand. With the
real audio - player and decoder which is available free of charge the PC
Web browser can play music on demand.
The application of the radio broadcasting law and the broadcasting agreements, would under positive law only take effect, if arrangements and distribution of performances for the public of all kinds in word, sound and picture using electrical waves (§2 I State broadcasting contract) were present. Bearing in mind the prevailing opinion about the term “general public” this can probably only be accepted if the distribution of information is supposed to reach a undefined number of people, that is any audience, and not an individual circle of addressees or a closed user group.41 The fact that anyone who has a telephone line is able to to use the Internet does not make the information provided a performance directed to the public. In its favour is the fact that the global exchange of information and the offer of services of individual communication are supposed to serve the same purpose as traditional means of communication, such as letter, leaflet, telephone, telex and telefax. Communication via the Internet does not satify the functional broadcasting definition, which is understood as an organised and planned process of providing a programme consisting of information and entertainment.
Mailboxes consequently do not fall under the broadcasting definition because certain information is sent directly as a result of existing connections or their contents are kept open to be called up by other users of the system. The fact that the organisers are not restricted by time constraints does not fit into the concept of broadcasting. Also one cannot talk about a typical technical distribution in the sense of radio distribution. In the end the on-line provider neither has the authority of opinion nor the recommendation power which a broadcasting institution has. In addition, if on-line services were to be put on an equal footing with the organisers of broadcasting programmes, the legal conditions of the corresponding regional laws would take effect and a controlling function of the regional institution for broadcasting communication would be required: a result which, because of the above mentioned “off-shore” communication would be already deemed to fail.
From a constitutional point of view it should be added that broadcasting has to be seen in the light of other basic rights of freedom, these result in a comparison with rights of freedom such as information and opinion as well as career and other constitutional laws.
Minister presidents of the “Bundesländer” accepted the recommendation of the working group of the broadcasting spokesmen of the “Länder”at the beginning of November 1995, which had suggested on 17 July 1995, in the framework of a “negative list”, to exclude the classification of electronic post from the broadcasting definition. Where electronic newspapers are in question it should be considered that the same contents can only be transported by electronic means if they already exist as printed material.
In any event it is recommended that on line services, as they currently exist, should be taken out of the definition of broadcasting, because of the present internationalisation.
A regional law to allow permission and a controlling instance for millions of providers calls for individual communication. This would result in a considerable disadvantage for the German position on the market and its competition interests in contrast with international service providers.44
- Application of the “Bildschirmtext - Staatsvertrages” (State Treaty)?
In paragraph 1 of the “Bildschirmtext-Staatsvertrag” of 31 August 1991
a video text is defined as a text for every user and provider for use of
a particular information and communication system, whereby information and
other services for users can be stored electronically, called up individually
and be made visible on the screen.
International data networks do not fall under the BTX - Staatsvertrag. The participants are users as well as providers. They are principally located abroad, cannot be and are not reached directly via BTX exchanges and do not fulfil per se the criteria for participation in this offer, despite the comparison of both systems.
International data networks which are connected via the non proprietory
communications forum Internet do not come within the Bildschirmtext - Staatsvertrag,
since the prerequisite of the debated “Staatsvertrag” is a system which
is open to all interested participants and providers only in accordance with
the“Staatsvertrag”. Precisely the access to and from data services abroad
via mailboxes shows that Internet is to be qualified as an individual communication
which can be understood in Germany as a telecommunication service in the
sense of the Fernmeldeanlagen (FAG) ( Law of Telecommunications) paragraph
1, section 4 for which the terms of protection of the “Staatsvertrag”
are not applicable48. Out of this, however, could arise a duty of the German
network provider to support monitoring .
- Are the laws relating to the press valid for the Internet?
If the non proprietary communication media Internet were to be defined
as “Press” within the meaning of Article 5 GG, then the Federal Government
would have a general authority pursuant to article 75 Nr.2 GG. Then all those
involved would be able to refer to the resulting freedom flowing therefrom,
the refusal to give evidence pursuant to paragraph 53 No. 5 StPO among others,
the obligations to name the printer, publisher etc. would have to be
fulfilled, those responsible within the meaning of the press would have to
be named and rights to information would have to be fulfilled. The right
would also exist to demand a correction of untrue statements. It seems that
the distribtution of information via the Internet by means of bulletin boards
and discussion forums does not fall within the concept of the press because
by interpreting the wording literally obviously nothing is printed. The result
of the information and forming of opinion cannot be understood materially
as a printed work in the traditional sense even if a very wide ranging concept
correctly would include documents, speech recorded sound carriers, visual
presentations with or without script, video carriers and musical recordings
with a text or explanatory note for distribution.
If the on line world does not come under the press in the traditional sense then there is a lot in favour of qualifying communication by means of the Internet and mailboxes with or without BTX as “virtual press” and to subject this new media to the related rules where this makes sense. In its favour is not only the fact that the information via Internet can be reproduced “page by page” on the PC at home but that the contents can be printed on paper as often as desired. Another factor in its favour is the factual and economic comparison of the procedure used for the transfer of information and its contents, as well as its availability and the possibility of the receivers to freely decide which information from the diverse information spectrum he or she wants to print out or read and in what order and at what time.
2. Protection against defamatory and untrue statements in the Internet
In the area of rights of expression there will be primarily questions concerning injunctions and retractions and if appropriate also the right to a counter-statement and damages for pain and suffering as a result of a statement made against the integrity of a person. The requirement for the latter is that a statement is made in public, for example in a news group.
If the senders of written or graphic statements in the network are either abroad and can only,under difficult conditions,if at all, be held liable, or if they can hide their identity or give incorrect information about their identity, the victim in Germany will question whether it could not hold the Network provider, the mailbox provider or the service provider in Germany as the next in the chain, liable and demand they stop the defamatory and untrue statements being made and if necessary also demand the right to a correction. At this point therefore the resulting considerations in answer to the legal questions as to whom in the nework is liable for the publicised untrue statements, insults or defamatory criticism, should remain limited. A flood of problems arises in relation to the above concerning the rights of the individual on and around the Internet.
2.1 The making and distribution of statements
Mailbox and service providers do not only pass on their own statements but as noted, a host of statements from third parties are reproduced as facts or expressions of opinion through the service providers to other on line receivers. It is questionable whether the resulting enforceable regulations for the press and radio are also valid for telecommunication providers.
Claims relating to the rights of expression can only be brought if the statement is published to a third party. The distributor of a statement is just as much at fault in the sense of civil or criminal proceedings as the person who made the statement: since whether the statement was made face to face or was seen or learned about from a third party basically makes no difference. This is dealt with as “Kreditgefährdung”, § 824 BGB, a civil wrong as well as “üble Nachrede” (defamation) § 186 StGB, a criminal matter, by treating assertion and distribution as the same. To what extent, in claims, relating to to the rights of expression, applications in particular, are granted for an injunction, retraction, compensation or the right to a correction, depends under press and broadcasting regulations on whether the media simply distributes the third party statements or reflects them as their own. Further it is of importance if the media distances itself from the statement and in this way avoids an adoption.
- Assertion
An assertion occurs when a statement is published to a third party via one
or more legal entities which contains its own opinion or message. The concept
of assertion in law is widely interpreted. It is not necessary that a statement
of fact is with certainty portrayed as true. Much more it is the couching
it in a question, the use of the subjunctive as well as the reflection of
a suspicion or a rumour that fall within the definition of an assertion.
Therefore phrases like “soweit zu erfahren war”, “soviel ich weiß”,
“meines Erachtens”,”offenbar” or “wie aus sicherer Quelle zu erfahren war”
do not exclude the assumption of a self made statement.
The statement of a third party is regarded as a self made statement by the press and radio, if the media portrays the statement as made by itself; this however is dependent on the effect of the portrayal on the average person and how it is understood by him. If the media, from the point of view of the average recipient, identifies itself with the statement, then it has adopted the statement.
The law recognises an adoption in the following cases:
- An adoption can be recognised by the fact the no source is given.
- An adoption can result from the fact that the statement of a third party
is at the centre of a report (e.g. the assertion, A had to split the profits
with a third party).
- An assertion can further be interpreted as accepted if it is stated in
a report that the court has described someone as a “murderer” and “criminal”
although an acquittal has taken place.
. A quotation can be adopted by allowing it to appear as one’s own opinion.
Despite the proviso “ we cannot comment on this” an adoption can occur if
someone else’s statement is quoted in such a way that it complements the
account.
- In an interview important interjections which could be understood
as a clear affirmation of the theories of the interviewer or at least as support,
point to the fact that the interviewer has adopted them as his own.
For the reproduction of witness statements in television the BGH represented in its “Panorama- Urteil” a very different opinion on the question as to when it can be assumed that a statement has been adopted as one’s own: Because the television broadcasts statements made by third parties without expressly distancing itself immediately from them, does not mean that it regularly identifies with them. It depends much more on the understanding of the television viewer. It is also just as unlikely that a statement is attributed to the channel because particular emphasis is put on it during a programme, or because the criticism instigates particular interest as a result of its subject matter. Even cuts through editing or background music in a later broadcast of the programme are conditioned by the media and not through the critical opinion of those responsible. On the whole the viewer sees the situation in the same light: by showing a picture at the same time the person speaks, the viewer attributes the opinion being expressed to that person and generally not to the programme editors. If, however, third party critical statements of this kind are embedded in the critical standpoint of the author of the programme so that the point of view is evident, the television adopts the statements as its own.
The reasons for this judgment make it clear that the BGH wanted to take into account the special position of the electronic media of broadcasting. Both radio and television should present as many different opinions and view points as possible. This is particularly important for live debates. The broadcasting media is a “Markt der Meinung” (Market of opinions). Therefore the liability of broadcasters for third party statements should be limited. This is particularly relevant in live discussions which are stimulated by the spontaneous remarks of the guests. Here even the quick wittedness and detailed knowledge of the presenter would be taxed to extremes if an immediate contradiction to the statements of the guest speaker was required. In this kind of situation appropriation should not be assumed even if the presenter does not distance himself.
It is different, however, if the critical statement of a third party is embedded in the programme’s own stand point in such a way that it appears synonymous with that of the broadcaster. One can assume that the statement has been appropriated by the programme when a programme shows two opposing view points but makes it clear in the introduction and general mood of the programme that one viewpoint is without substance. Finally the mere addition of a contribution to a program can be an adoption of an assertion as shown in the following paragraphs.
- Distribution
If the media neither gives its own opinion nor adopts the opinion of a third
party then it is a simple distribution. The precondition for a distribution
of a statement is that a third party statement heard from someone else is
published as a third party statement. It has to be judged from the circumstances
as a whole whether the publishing organ is simply a means of conveyance of
the third party statement of not.
As already mentioned the person who distributes the statement of a third
party is basically just as liable as the person who first made the statement.
However,the prevailing legal and scientific opinion is that the liability
of the distributor should be limited in certain circumstances. This
limited liablity can, however, only relate to claims in tort for a retraction,
injunctive relief and compensation. The claim for a counter statement aimed
at enforcing the legal principles of expression ”auditur et altera pars” is
not affected by this.
Above all, an exclusion or at least a limitation on the liability for distribution
of a statement can be expected when the distributing media expressly
distances itself from the third party statement. The distancing has to be
clearly expressed, making it obvious that third party statements with which
the media disagree are simply being passed on. Whatever form this takes depends
largely on the circumstances in which the statement is distributed. Distancing
phrases such as “diese Kolumne erscheint außerhalb der Verantortung
der Redaktion” (the editor accepts no responsibility for this column) or
“dies ist sin Gastkommentar der....” (this is a guest comment) could be necessary
if a comment puts the opinion of the author in the forefront.
For other announcements in the printed press it is normally sufficient to
put the contentious third party statement in quotation marks (“Ostagent”).
The following cases in which liability for distribution is to be limited have been recognised under law:
As mentioned above, broadcasting is characterised in live discussions as “Markt der Meinungen”. It would contradict this function if the media also had to take responsibility for the contibutions to the discussions made by guest speakers. The media is therefore not usually liable for statements made by third parties. Care must be taken, however, that critical statements made by someone in a discussion are not built into ones own comments so that for the average viewer the programme reflects the point of view of the media.
Special guidlines also apply to the use of quotes, ie. complete statements made by third parties or extracts are reproduced either in the first person or in indirect speech. If the media adopts the contents of the quote as made by itself then it is primarily liable with the original author. Liability can only be resisted if the distributor distances himself adequately from the quote and if a public interest exists. For example, public interest can attach to the statement of a personality in the public eye. The same applies when the subject of the quote is an accusation of a serious criminal offence, which is not just a wild accusation. No public interest attaches to rumours which stem from doubtful sources or from quoting defamatory statements. It is also prohibited to quote undeniably false accusations.
Since the print media is liable for the contents of readers’ letters as well as for the distribution of other third party statements, a dissociation is required if these do not reflect the editor’s point of view. Usually this is enough to exclude the liability for the contents of the readers’ letter. However, this does not count if the contents of the reader’s letter are defamatory. If such a defamatory statement is published it is usually assumed that the editor identifies with the contents of the reader’s letter.
Advertisement columns in the print media are judged in the same way. The press is liable for the complete printed work including notices, advertisements and the like. For circumstantial reasons the distributor’s liability must be limited. It is impossible to check every advertisement placement to see if third party rights might be infringed. This breaks down in practice because of the multitude of advertisements placed daily. Liability for the contents of published advertisements is therefore only assumed in special cases. A special exists for example where there are factual or legal reasons to doubt the contents of the advertisement.
Factual reasons which could give rise to doubt could for example exist when the contents of the notice is contrary to known facts. These can also be facts which are known in the town or local area. Grounds for legal doubt can exist when the text of the advertisement reveals a potentially defamatory content or may infringe other criminal laws. It is particularly worth mentioning the rights to a person’s life and privacy § 201 StGB.
To summarise, one can say that the current laws limiting liability for third party statements can also be considered in relation to the question of the liability of on line service providers. In particular for statements in News groups and Area News it has to be considered that as a result of circumstances the liability of service providers also has to be limited. It is also impossible here to check all news and bullet boards to see if third party rights might be infringed. Again this would not work in practice because of the multitude of information and messages going in daily. Liabilty for the contents of published messages can only be presumed in special cases. A special case can exist if it is proven by the circumstances that on factual or legal grounds the admission of the data should be questioned or if the offerer knows of any reason why it should not be admitted.
2.2 The law in American courts
Decision in Daniel vs. Dow Jones & Company
In the case of Daniel against the Dow Jones & Company in 1987 the plaintiff
sued for compensation for his unprofitable investment made on the basis of
false information which the defendant, a so called News Retrieval Service
had made available to the plaintiff on line. It had done so with the representation
that the financial information was up to date and accurate.
In its judgment the New York civil court asked the question: “Do modern techniques
for delivering the news change the rules to its providers?”.
This case raises the question as to whether the offer of on line information
from computer to computer is bound up with more risks for the reader than
if the same news were communicated by some other method. To avoid unlimited
liability which contravenes the principles of good faith, a special relationship
is necessary to make someone liable for mistaken information. The relationship
of the on line user to the mail box provider would correspond to that of the
newspaper vendor to the publisher: for action to be taken on a warranty for
mistaken information there would need to be something more than a sale of
a newspaper which is bought and read by thousands of other people. The right
to free distribution of information excludes liability unless the provider
knows the statement is untrue or recklessly attaches no importance to the
truth.
In its judgment, the court held that the user has no special relationship to the mail box provider and the latter is therefore not liable for negligent, incorrect statements made via its service. For the same reason newpapers are not liable for the negligent publication of incorrect advertisements.
New York law is therefore very much on the same lines as the prevailing German literary and legal opinion, which on the question of incorrect newspaper advertisements, considers that an intention to be legally binding is lacking: it is an “invitatio ad offerendum “. Correspondingly, the advertisements of goods on videotext displaying their price is not a binding offer in the sense of §145 BGB.
- Cubby v.Compuserve Inc.
The decision in Cubby v Compuserve Inc. 1991 concerned the question of the
distributor’s liability for defamatory statements made on line. The United
States District Court in New York acting as appellate court decided on 29
October 1991 that ordinarily one who repeats a defamatory statement or otherwise
republishes defamatory matter is subject to liablity under New york law as
if he had originally published it. Distributors of defamatory publications
are not liable in tort if they neither know nor have reason to know of the
defamation. This applies especially for service providers eg Compuserve
Inc. where information is provided by third parties without the possibility
of checking the contents.
The court found that Compuserve’s product was basically “an electronic profit
library”. A computerised database is the functional equivalent of a more
traditional news vendor. Therefore the inconsistent application of a lower
standard of liability for an electronic news distributor such as Compuserve
to that applied to a public library, book store or news stand would impose
an undue burden on the free flow of information.
Compuserve did not dispute that the statement at issue had a defamatory character
but argued that it was a mere distributor and not author of the defamation
and therefore could not be held liable since it knew nothing about it and
had no reason to know about it. In particular, the vast amount of information
and the speed with which it is published or made available to third parties
makes it impossible for Compuserve to check it beforehand. The court held,
that the plaintiffs had put forward no particular facts to prove that Compuserve
knew or should have known about the questionable contents to allow the appeal
and it was therefore dismissed.
Stratton Oakmont Inc. v On-line prodigy Services Co.
On 24 May 1995 the case of Stratton v. Prodigy was heard and ruled on by
Judge Stuart L. Ain before the Supreme court in Nassau in the State of New
York. The investment bank had sued the on line service provider Prodigy on
the grounds that untrue and defamatory statements about the plaintiff were
distributed on Prodigy’s bulletin board “Money Talk”. With a readership of
two million it was the most widely distributed electronic financial
news board. The readers use the bulletin board by tapping in daily about
60.000 different opinions and comments concerning the financial world.
The court adjudicated against the service on the grounds that on the basis of the services own information it exercised sufficent editorial control over the content of messages on its bulletin boards which made it just as liable as publisher. Prodigy had also introduced an automatic deletion programme in order to exercise this control and had instructed the bulletin board editors to delete statements “of bad taste and an offensive nature”. This amounted to editorial control for which the service is answerable. The argument that the control is not comprehensive was irrelevant because the on line service had availed itself of the right to determine what would be right and suitable for its members to write into the forum, to read or not.
The material difference to the decision in Cubby v Compuserve Inc, lies in the greater editorial control chosen by the defendant telecommunication service whose intention is to guarantee a “family oriented” computer service.
2.3. The law in England
The case of the claim for compensation was widely known in 1995 (see Financial Times of July 13th, 1995: Libel Bill) as a negative statement via an electronic conference to an audience of 16 million readers was made. Even if the question of liabilty of the service provider was not an issue here, the relevant discussion about liablity and admission was introduced.
2.4. The law in Germany
The decision of the LG Stuttgart; Judgment dated 17.11.1987.
The only judgment so far relating to the question of liability for statements
made on line emanates from the LG Stuttgart. In a preliminary injuncion hearing
against a mail box the plaintiff claimed injunctive relief to stop post being
sent which he found to be damaging to the reputation.
The LG Stuttgart dismissed the plaintiff’s claim on the following grounds: the mail box provider which provides the means of communication in the form of an electronic bulletin board indeed contributes to the distribtution of the messages provided, which is why he can be asked to refrain from publishing the statements: he is not, however, liable to check every incoming message for its legality before allowing it to be stored and thereby enabling it to be called up. With the imposition of such a time consuming and in some cases difficult obligation to review the messages for their legality, the duty of care of a non commercial user of a mail box would be overtaxed. To this extent, the liabilty of a newspaper publisher for the advertisement columns would be comparable. He is only liable to stop distribution of the defamatory statement if he recognises its damage or if he should have been able to recognise it.
III. The liability of a telecommunication offerer for the contents of statements
1. The conditions of liability for the telecommunication offerer
The allocation of liability and responsibility for statements made in the net depends on who does what. The lowest rank on the heirarchical net are the users who make statements in newsgroups on bulletin boards or in forums. These users come together via system operators or telecommunication offerers in the net, or services and mail boxes. At the end of the line are the telecommunication firms such as Deutsche Telekom AG which provide telephone lines and telephone exchanges to the public. The latter are excluded from liability if they themselves do not appear as offerers.
According to the German Government, Telekom only passes on news. It does
not have any influence on the contents of telephone calls. Telekom would
overstep the constitutional legal boundaries of its remit if it influenced
the contents of telephone calls or even wanted to exercise a censorship.
Whether or not this is also valid for the (Deutsche) Telekoms 1995 successor
of Datex-J, the T- On-line service shall be in question here.
It is questionable whether liability for statements can be imposed on system providers , telecommunication, network, service or mailbox offerers. An argument against imposing liabilty is that the service providers generally do not know the contents of the messages. They are subject to confidentiality within the Telecommunications Act which is also valid for mailbox providers (§10 FAG). The infringement of this confidentiality is subject to criminal prosecution (§345 StGB). System providers are only liable for the support of the monitoring of the telecommunications traffic in accordance with §§ 100a, 100b StPO, G 10 Network providers are also subject to data protection.
On the other hand, the fact that the provision of telecommunication services
- like other institutions of freedom of opinion - are not completely free
in respect to their services has to be taken into account. For this reason
a special valuation for the provider has to apply in cases where the contents
of the “mails” are known or ought to be known or the standards for the maintenance
of the networks are not fulfilled. In this case, with regard to the rights
of expression a liability in tort can be imposed for the republishing of
the message, as under criminal law a contributory infringement, or a copyright
infringement or an infringement against competition law might exist. This
may be of particular importance when the service provider makes offers from
interested surfers available to the public on demand, for example by providing
an electronic “black board” for the exchange of information to the public.
In this class of cases it is obvious to draw a parallel with the legal valuation
of the situation of a newspaper publisher with respect to the advertisement
columns: if the provider knows of the potential libel or has reason to know
or disregards such reason then he is liable in tort to stop the distribution,
to retract the statement or to publish a reply. High standards have to be
set for the service provider in relation to the conditions it imposes for
participants. “Wild west and anarchy can be prohibited in as far as this
is practically possible.
On the other hand, the need for the electronic market to operate with freedom
of communication has to be taken into account.
The use of international data networks in the information world increases the dangers in society 88 where the new challenges relating to computers, the pushing of boundaries, worldwide information and opinion shaping can only be conquered together. Even if the economic and social changes from industry to the information society are characterised by an increasing importance of non material values as opposed to material issues, and therefore copyright, trade secrets and other know-how not only becoming a new value but also a power factor and potential danger, legal claims in respect of the right of expression cannot be left behind. According to Sir Karl Popper’s article in “The Open Society and its Enemies” in 1945 information is a public good which in an open society has to be communicated freely: protection of information should not only have the economic interests of the owner in mind but also has to take into consideration the interests of those who are affected by the contents of the information.
From this aspect of information, not available in the case of material issues, a special duty in relation to the protection of the individual and expression has been placed on the telecommunication offerer in the area of international data networks and their use. A network provider can therefore be required to take steps as far as practicably possible to avoid injurious statements being made and to follow up leads which point to potential infringements.
In the case of a counter-statement, the law relating to the press and radio will apply, i.e. there is no significant difference between distribution and assertion of the statement. The enforcement of the principles of the rights of expression “auditur et altera pars” calls for this right in respect of untrue statements of fact to be granted in any case.
2. Implications of tortious liability for statements made on line
If the requirements for liability are met and the telecommunications offer is defined as “virtual press” then the following laws could apply to the relationship between user and offerer as well as in relation to third parties:
- On line users who become victims of statements are entitled to the full remedies in tort including injuntive relief, a claim for retraction, compensation and correction from the telecommunication service;
- the application of a “fliegenden Gerichtsstand” (flying place of jurisdiction) pursuant to §32 ZPO for electronic information can lead to proceedings where the user is who has read the mail according to the distributor.
- the short limitation period which attaches to press offences applies to tortious acts committed as a result of an on line publication.
- the net provider can make use of the presumption that he is safeguarding rights.(§193 StGB)
- the network offerer is an upholder of the freedom of information and opinion including freedom of distribution pursuant to Art. 51 GG. The possibility of a plea privilege from testifying under (§53 Nr.5 StPO ) and prohibition of seizure (Beschlagnahmesverbots) under (§97 ff, StPO) is available to him and his accomplices.
- The network offerer can rely on the censorship prohibition in pursuant to Art. 523 GG.
- the network offerer has a full right to information from public bodies under (§4LPG)
- the network offerer has to clearly separate advertisements from other information;
- in terms of press regulations the network offerer is liable in so far as no third party has been appointed.
3. The need for discussion of access conditions for offerers and users of the Internet services
If defamatory and untrue statements via “offshore” cannot be completely stopped, the Netiquette is not an adequate basis for the future. The Eletronic Frontier Foundations known as “EFF” based on the American model, which exists in several European countries with the aim inter alia of educating the public about data networks, is also not adequate enough.
3.1 Efforts being made in the USA, England and the EU
In the USA, Great Britain and on a European level consideration is being given to legal precautions:
In June 1995, the US Senate passed the Decency in Communications Act (also
known as Exon Bill) with the short title: Internet Freedom and Family Empowerment
Act by 84 votes to 16. The aim of the regulations is to prevent the use of
computer communication eg electronic mail and on line services from distributing
“indecent” or “offensive” information (“indecent material”) and to make the
accessibility of such information to minors an offence. The problem with
this regulation is that all contents communicable“on line” including classical
texts such as James Joyce’s Ulysses are covered by it. If these standards
are applied now to on line services and individual Internet communications
, then the hitherto open “basisdemokratische“ (democratic basis) and “staatsferne”
(without state) nature of the Internet will fundamentally change. Even German
telecommunication providers might see themselves forced in the future to
control access to the net and the contents more strictly because of a fear
of being criminally prosecuted in America. Whether this is conducive to a
culture based on freedom of communication is questionable.
The Office of telecommunication (Oftel) in Great Britain has recognised the
need for discussion about the so called broadband switched mass market services
and has raised the answer to the question of a possible regulation.
Concern has been expressed loudly in the United Kingdom recently over the draft libel bill which aims to combat defamatory and untrue statements in the Internet and prevent a flood of actions.
Bearing in mind the positive law it is not clear whether telecommunication services are legally liable for the contents transmitted. Up till now these services were classified as so called “common carriers” comparable with the traditional services of the post office and telecommunication firms.The British draft Bill proposes that on line communication systems which transmit defamatory statements or make them accessible to the public are primarily not liable and thereby confirms that the actions of the service providers amount to innocent dissemination. On the other hand, secondary liablity is supposed to be introduced by the draft Bill if these services do not act with all reasonable care in ensuring that their actions do not contribute to the publication of defamatory statements. Critics argue that it is difficult, if not impossible to fulfil these requirements.
On a European level, in July 1995, the General Directive XIII of the EU commission proposed a draft outline directive for the licensing of telecommunication services96. It is not contested within the EU, because it is also considered that is should be able to grow freely so that the market development is not restricted by too many regulatory conditions. It is also too early to determine which regulations with regard to content have to apply.
The proposed outline directive aims to harmonise the national telecommunication
laws, the most important principles of which are:
Prohibition on limiting the authorisation of telecommunication Services or
their infra structure and the harmonisation of licensing conditions and approval
procedures for competent national telecommunication supervising authorities.
Article 1 (Scope and aim) of the outline directive is aimed at all telecommunication
services. At the same time the EEC guidlines 90/387/EEC and the draft outline
directive relating to “Interconnection to public telecommunication networks
and public telecommunication services in the context of Open Network Provision
(ONP) are included. It is intended that in accordance with the intention
of GD XIII all new services should be licensed exclusively on the basis of
the outline directive for Telecommunication Services. Pursuant to Article
8 harmonisation is supposed to be granted by the fact that the member states
of the European Union can only place individual telecommunication licence
requirements in a few exceptional cases. These are specifically listed again
in Appendix 1 of the outline directive and can basically be classified in
three categories:
- obligations can be imposed an all users and service providers for the purposes inter alia of network security and the safety of the users and employees as well as for data and environmental protection reasons.
- in addition, the compliance with the so called ”public service requirements “ can be imposed on telecommunication services and also service providers which turn to the public, in order to guarantee among others the availability, quality of the services, emergency services and special conditions for the disabled, protection of a particular user or consumer as well as advertising restrictions and a procedure for settling a dispute. Furthermore restrictions on the maintenance of law and order pursuant to articles 36 and 56 of the EG-Vertrag are possible.
- the third category cencerns obligations which should apply to individual licences. These individual licences incidentally are supposed to be granted in accordance with article 3 paragraph 4 only in exceptional circumstances.
The General Directive X has also announced the necessity for the drafting of a greenbook about the development of new audiovisual services. It issued a questionaire about the protection of certain matters of public interest in the context of new services of the information society, which among others desires an answer to the question: “Who is liable in the case of a breach of the rules (telecommunications provider, service provider, user) and what sanctions are proposed?”98
3.2 For the improvement of the protection of the rights of the individual in Germany
Any kind of freedom of information and opinion is covered by Article 5 II GG. It is questionable, if it is necessary and makes sense to introduce laws or other restrictions like the conformance to access requirements for on-line services in order to protect personality and dignity in a separate way. We have to consider which structure to choose, to in dubio pro libertate provide the usage of services of international providers with good judgment, without pushing the requirements for the protection of opinion and personality in to the background.
One topic for discussion will be the shaping of requirements for participation by the network provider in the interest of the freedom of opinion in a way which ensures the rights of the individual and prevents the distribution of untrue and defamatory statements. This way the network provider is also entitled to punish offences and to exclude users from the net. The adherence to applicable laws is best ensured by service providers having to - as far as it makes sense - conform to the BTX-Staatsvertrag, which includes as special duty for care and identification. The provider has to check the content, source and truth in accordance with the care required. He is obliged to stop inadmissible statements known to him, especially statements made against the protection of children and young persons and the dignity of man as well as statements glorifying war. As soon as the provider is aware of such statements he has a duty to follow these up. The provider is responsible for deleting any such entries in the computer. Domestic network provider may only be persons with absolute legal capacity, permanently resident in Germany.
Even where the classification of electronic mail is excluded from the broadcasting concept, there should be minimum clauses in Germany and in other countries to provide the highest possible protection for the individual.99 This could be strengthened by submitting services in the Internet which exceed the simple individual email to a duty to give notice and the aforementioned obligations. These services could also be obliged to include the right to a counter-statement. Whether, in view of the relevant degree of opinion held by these services this leads to the concept of broadcasting being encompassed and therefore the rules being applied, probably has to be answered with no, but can also be left open.
1. Service provides are fully responsible for their own statements made on the net.
2. Liability for statements of third parties and therefore distribution liability analogous to liability in other media like newspapers or broadcasting is only imposed on the telecommunication service provider if he knows of the infringement, ought to have known or failed to take heed. Liability is also imposed if the provider negligently does not fulfil the requirements regarding the monitoring of the users.
3. A claim for a correction is granted in the same way as for press and broadcasting, whether the untrue statement can be linked to the telecommunication service or not.
4. An obligation to obtain a licence for the telecommunication service provider has to be discussed: this should in any case apply for services which are based in Germany to ensure the adherence of general law rules to protect the right of the individual in a non proprietary on-line communication media as well.