In a decision which will be welcomed by ISPs, the US Supreme Court earlier this week upheld a decision last year that the ISP Prodigy was not liable for defamatory bulletin board messages.
Alexander Lunney, a boy scout, sued Prodigy after an imposter posted “vile and obscene” messages in Lunney’s name on a Prodigy bulletin board. The New York Appeals Court had last year accepted that this might amount to defamation of Lunney, but held that Prodigy was not liable for the content of the messages.
Prodigy reserved the right in its membership agreements to screen bulletin board messages, but did not normally do so. When it was made aware of the defamatory postings in Lunney’s name Prodigy took down the messages. The Prodigy decision is therefore based on different facts from the recent UK decision in Godfrey v Demon, where Demon declined to take down defamatory material of which it had been made aware.
UK defamation law makes ISPs potentially liable as publishers of defamatory material posted on bulletin boards, contrasting with the Prodigy decision where Prodigy was held not to be a publisher under US law. However, ISPs may still have a defence under UK law if (unlike Demon) they act promptly to take down offending material. It is therefore unlikely that a UK court would have reached a different decision based on the facts of the Prodigy case.