Part 8 - How to Tangle with the Cobra

So now back to the question of how to tangle with the cobra. As you can see from the legal background, there are and will be no guarantees until a few cases are tried on the merits of the safe harbor concept. However, one thing that is established is that if you do choose to delete statements falling under the CDA’s exemption line, you will be protected from legal action brought at the state level, which would account for most civil litigation proceedings.

Are there any clear answers to this tangled mound of questions? Probably not … but here are some of the questions we’re asking ourselves as online publishers (and the answers we’re coming up with for them):

1. Should I be pre-screening messages before they get posted?

   There doesn’t seem to be any legal reason to pre-screen messages - as long as you handle situations when they occur or are brought to your attention. There still might be public relations reasons, though.

2. Should I be constantly policing the boards?

   You should keep in fairly close touch, but whether or not you are liabile should not be determined by so doing. In most cases, you will be notified of a problematic posting by a complaint. In the AOL case, the charge specified that they didn't respond "quickly enough" to a complaint. It is recommended that you have a policy in place to allow you to respond quickly once a complaint is set in motion.

3. What are the implications of a copyright statement for the material posted on the bulletin board?

   Some in the legal profession believe a copyright statement could be used to invalidate a safe harbor claim, as it could make you the “adopter” or active stater of everything contained within. It might be safer to say (like The Well does) that “each participants owns their words.”

4. Who defines obscene, indecent, etc?

   Well, this is a complicated question. CDA 230(C) leaves it up to you as publisher to decide what to remove from your BBS in order to receive "safe harbor" protection. However, this does not constitute the decision as to what is obscene, which is a matter for the courts. You could argue that, with the whole world as the community who's moral standards you're upholding, very little if anything could be defined obscene. Or you could be held accountable for violating the community standards of Anywhere, USA.