Internet Outlook with Richard Wiggins | 68

Does AOL Know How Risky Its Position Is?

America Online and Free Speech: An Oxymoron?

Virtually all free speech cases involve speech that's offensive to someone. After all, if no one takes offense to a particular piece of content, no authority will be motivated to force its suppression. When offensiveness is determined by politicians, and AOL demonstrates it will react to negative headlines and public posturing, there's not much room for subtlety. The London postings were offensive because they seemed to give a platform to the lunatic thoughts of convicted murderers. One wonders if AOL's censors realize that Truman Capote's In Cold Blood did exactly the same thing.

Although many free speech advocates couch cases in terms of the First Amendment, that Constitutional provision tells what governments can do. There's probably not much of a First Amendment case involving AOL. One could hope that AOL would be more enlightened, offering Terms of Service clause along these lines:

Instead, AOL tries to play both sides of the fence, pandering to politicians while claiming to offer personal publishing to the masses. In so doing, AOL assumes certain risks:

• Assumption of Liability

If AOL does regulate members' content, then it potentially assumes liability for that content. In 1995, New York judge Stuart Ain ruled that Prodigy was responsible for content published by a Prodigy member because its member guidelines regulated content as to offensiveness or obscenity. If they control the content at all, reasoned the judge, then they assume civil responsibility if the content is libelous.

The plaintiff in the Prodigy case eventually settled for an apology from Prodigy, so we don't have settled law in this area. In another case, a court ruled that CompuServe was merely a carrier of content, and not its author for the purposes of libel law. The law is unsettled; however, since AOL's policies are similar to Prodigy's, and since AOL's behavior shows its willingness to intervene in content matters, AOL may face a similar suit in the future.

• A Multiplicity of Offenses

Once people realize that negative headlines are a way to force AOL to censor content, activists will have a field day. An AOL member might post a comparison of world religions that somehow offends a member of a particular religion. The free speech community says that the remedy for speech that offends your sensibilities is more speech: put up your own web site and tell the world your own point of view. But AOL's recent behavior crosses a line; if you can get a few newspapers to highlight content hosted by AOL that somehow offends someone or some group, AOL will rush to force its removal. Now activists of all stripes will plumb AOL member pages, looking for ways to be offended -- and ways to make headlines for their causes.

• One Internet, Hundreds of Governments

AOL's pending acquisition of CompuServe raises another risk. CompuServe has bravely fought censorship in the past, notably threatening to cease doing business in Germany after prosecutors there tried to pursue the company for passing through Neo-Nazi content considered illegal under German law. Whether that content resides on Usenet or on the Web, CompuServe refused to kowtow to the content-based laws of any one country. Such laws are antithetical to the very idea of the Internet.

Will CompuServe and AOL show such bravery as they try to contend for the ISP and Web publishing market throughout Europe and the rest of the world? Or will AOL/CompuServe become the kind of service that panders to the censorship desires of each host nation? Does AOL want to be known as the kind of company the leaders of Singapore, mainland China, and the like would love? As AOL moves to become a serious worldwide ISP, it may rue the day that it signaled dictators how readily AOL censors member content.

AOL needs to make a simple choice: is it in the business of policing customer content, or not? If it continues to try to have things both ways, AOL may find it's spending a lot more on lawyers and publicists as it copes with an explosion in demands from activists and governments alike.