America Online has narrowly won a ruling in the Florida Supreme
Court to the effect that it and other on-line service providers
cannot be held liable for information disseminated on the internet,
even if it includes pornography.
The case began when AOL was sued in 1994 by a mother claiming
that her then 11 year-old son had been lured via the internet to
the home of a paedophile, Richard Lee Russell. Videotape of the
child engaging in sexual acts with other children was marketed and
sold by Russell through AOL chat rooms. Russell is now serving a
14-year sentence for offences relating to child pornography. The
child’s mother raised the action against AOL to recover damages for
emotional injuries suffered by her son.
AOL said the lawsuit was barred by the US Communications Decency
Act (CDA) which says that on-line service providers cannot be
treated as the “publisher or speaker” of content transmitted over
its service by someone else.
Lower courts agreed with AOL and dismissed the mother’s claim.
However, the case was sent to the Florida Supreme Court for review
as a matter of “great public importance.” By a 4-3 majority, the
judges found the AOL was protected by the CDA, saying “AOL falls
squarely within the traditional definition of a publisher.”
One dissenting judge, Justice R. Fred Lewis, vehemently argued
that AOL should be liable because, according to his report, AOL
failed to take action when notified of Russell’s activities on its
service and therefore “acted as a knowing distributor.” He argued
that AOL could have removed the offending content when it became
aware of it, although AOL disputed this.
The case could go further in protecting ISPs than current
European protections. ISPs are generally not liable for what they
host unknowingly, but can become liable if they fail to take action
when notified that the material exists on their servers.
