At 09:58 AM 3/17/00, Ed Gerck wrote:
>"Michael Froomkin - U.Miami School of Law" wrote:
>
> > I think there may be a claim in defamation if your site was blocked and
> > the software claims you have some kind of nasty content...
>
>But, what happens (as is the case) when that software claims nothing...
>you cannot even view what is being blocked. A difamation claim IMO
>would require others seeing a disclosure of the site's name in a blocking list
>... hmmm, that is perhaps why they do not disclose (even to parents?).
If A publishes a site, and B attempts to view the site but B's access is
blocked by software written/published by C, where the software explains to
A that the block is preventing access to obscene content, it doesn't seem
silly to say the C has defamed A by stating to B that A is a publisher of
obscene content. I think a "false light" privacy claim might also be of
interest in the cases where the statement by C isn't actually defamatory.
("publisher of obscene content" might be defamatory, while "publisher of
activist material" or "publisher of violent material" might not be.)
Seems like a person who might find themselves in B's shoes might want to
add qualifiers or weasel-words to the text provided to A when the block
occurs, and keep a good record of the web page(s) which were viewed in the
creation of the block. An especially diligent B might write their software
such that it says something like "The site available at the URL
<http://blah> on March 15 at 12:30 PM PT appeared to be unsuitable for
(children/a workplace/sheep). The material available at that URL at the
present time might also be unsuitable, so your access has been blocked."
If you want to clobber censorware providers, what you need is a good
malpractice suit against them for failing to block objectionable content,
and thereby forever poisoning some innocent young thing's mind with the
sort of spam the Cypherpunks list seems to get on a regular basis. Then the
censorware provider can take their lumps for failing to block bad things,
or they can explain to the court (and the press) that their software is
neither perfect nor guaranteed, and that doing blocking well is a really
hard job, and that their limited warranty only covers failure of the medium
used to deliver the otherwise as-is software product . . .
