Courts must determine the standard of liability for Internet Service Providers (ISPs) that proactively edit their Bulletin Board Systems (BBSs) for defamatory content. ISPs are computer services that provide data processing and communication services to customers - individual computer users who subscribe to the ISP's service. BBSs are computer programs that act like a traditional bulletin board. They are centrally located on the ISP's computers, and people who subscribe to the ISP can access that bulletin board to publish (or "post") messages on the board, and read and respond to other people's messages. Some ISPs allow people to post messages without ever reviewing or editing the various messages. Other ISPs, however, hire BBS editors whose job is to remove messages that may be defamatory in nature. The author proposes that the Sullivan malice standard should apply to ISPs that exercise editorial control. Subscribers to ISPs use BBSs to express their opinions, which is similar to a subscriber writing a letter to the editor of a newspaper. Further, BBSs are similar to a radio broadcast. Consequently, BBS speech is considered a hybrid of newspaper and radio broadcast speech. Since BBS "speech" has this hybrid nature, it will need a new category in defamation law. As a result, courts will be able to more effectively balance the protection of the reputation being harmed and the marketplace of ideas. In order to determine a standard for controlling BBS speech, courts should look at the plaintiff's status, the ISP's knowledge of the falsity, and the ISP's reckless disregard of the statement's truth. This three-prong inquiry is the Sullivan standard. The author proposes that courts treat the plaintiff harmed as a public figure, since the plaintiff can easily rebut the defamatory speech on the bulletin board itself. Given these issues, the Sullivan malice standard is the best standard to apply to BBSs. It will insure that that individual's free speech is not chilled, given that the Sullivan standard is a difficult one to meet. Further, it allows the defamed individual recourse to protect his reputation, while encouraging the free expression of others on the bulletin boards.
Iris Ferosie, Don't Shoot the Messenger: Protecting Speech on Editorially Controlled Bulletin Board Services by Applying Sullivan Malice, 14 J. Marshall J. Computer & Info. L. 347 (1996)