Liability Issues (part 2)
Defining the Sysop (continued)
The opposite role from a common carrier is what is called a publisher; in the case of print media, this is the company that actually prints the newspapers containing defamatory material. A publisher is held legally liable for the information it prints because it exercises full editorial control over that information; it is therefore assumed to be in a position to monitor its content for defamatory material. Many sysops are deemed to fit this role much more closely than that of distributor or common carrier, as past court decisions on sysop liability have shown. In Stratton vs. Prodigy (see Precedent section), a judge noted that Prodigy did exercise control over its content and could therefore be held responsible for that content. This definition of Prodigy as a publisher was later changed, but some sysops are still considered publishers under the law. A more definitive example would be a newsgroup moderator who reads and edits all material before any is posted; this moderator then clearly takes an active role in the dissemination of defamatory information.
A third category, between common carrier and publisher, is the category of distributor. Again, an analogy to print media is useful; the distributor in this case would be the newsstand which may sell a newspaper containing defamatory content. The newsstand is not assumed to be aware of the content of all the publications it sells and is therefore not held responsible for that content. However, in some situations, the newsstand may in fact be aware of defamatory content; in this instance, it can then be held liable for continuing to distribute this content. In general, a distributor is seen as taking only a passive role in possible defamation and is therefore not liable; only when some deliberate transgression (such as failing to remove material it knows to be defamatory) can be proven is the distributor liable. This category, sitting in the middle ground between two extremes, is the most difficult to define and deal with, but it seems to be the appropriate designation for many sysops, who will in general not attempt to monitor content but may take action to remove exceptionable content if it is brought to their attention. In Cubby vs. CompuServe (see Precedent section), CompuServe was deemed a distributor and therefore not held liable for defamatory material of which it could not be expected to have knowledge. However, the categorization also implies that if CompuServe had been made aware of this material, it would have been obligated to remove it.