Part 1 - What's this Common Carrier thing?

Nearly everyone engaged in the field of Internet content knows that there is a real value to offering open bulletin boards - after all, they encourage repeat visitation (something many sites have struggled with) as well as a higher page read average. The problem is that turning over an area of your site to what any user might be inclined to say is a legal time bomb, ticking away toward liability. For example, you could be sued for invasion of privacy, defamation, libel, slander, copyright infringement, trademark dilution, etc.

So is there any way to tangle with this cobra without getting bitten? Since BBS's were established, operators have employed different strategies to limit liability in the face of mercurial laws and court decisions. Perhaps the final straw was the 1995 case Stratton Oakmont v. Prodigy Services Co., in which Prodigy was found liable for defamation as a publisher of a defamatory statement that had been posted on its bulletin board by an unknown user. The basis of Prodigy's liability was that it was using software to monitor and delete "offensive" messages and those in "bad taste."

This holding supported those who argued that a BBS operator is like a "common carrier" and should be free from liability when they only provide a medium in which others can operate - as a bus company only transports its passengers. The provider, therefore, cannot be responsible for the content of each "passenger's" baggage under such a theory. Prodigy violated this safe harbor by actively monitoring its sites. This ruling resulted in providers adopting a hands-off attitude regarding the content on their sites and monitoring this material.

What follows is an exploration of the different stances a provider of online community can take with regard to their open forums. This is not intended as a legal document to be used as a basis for policy, but it is a good starting point as you begin or continue negotiating the legal labyrinth of online law.