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.