A bank whose website was incorrectly identified by Earthlink’s anti-phishing toolbar as “potentially fraudulent” cannot sue the ISP, a judge ruled last week, finding that Earthlink was not the publisher of the information in terms of a US law.
The case concerned Scamblocker, a service launched by Earthlink in April 2004 to spot fraudulent websites set up to gather visitors' bank details.
According to Earthlink, Scamblocker uses real-time fraud detection and analysis techniques, including fraudulent website alert graphics that rate the safety level of each website. It also uses an actively managed white list, called EarthLink Accepted.
However, in April this year, Scamblocker identified AssociatedBank.com as a “potentially dangerous and fraudulent website.” The site was a legitimate one belonging to Associated Banc-Corp.
The error was soon detected and addressed, but Associated Banc-Corp sued, seeking an injunction and damages.
Earthlink argued that it was not liable because it was protected by a provision in the US Telecommunications Act of 1996 that says:
"[no] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
In this case, said Earthlink, it had been given the incorrect information by a third party vendor.
Associated Banc-Corp responded that Earthlink had acted as an information content provider "when it created and developed the substance of the erroneous warning about Plaintiff’s website."
Judge John C Shabaz of the US District Court for the Western District of Wisconsin disagreed.
“Imposing liability on [Earthlink] for the inaccurate information provided by a third-party content provider would treat [Earthlink] as the publisher," he wrote, pointing out that Earthlink is therefore immune from suit under the relevant section of the Telecommunications Act.
The case is the latest in a series of rulings to consider the Telecommunications Act provision, which is a part of the Act entitled the Communications Decency Act.