Introduction

Following the slew of recent discussion on the Mud Connector's boards regarding liability of MUDs, as well as the misconceptions commonly found among disgruntled players threatening to sue MUDs who banned them for impeding their free speech rights, I felt it was time to put up a summary of the legal precedents for both players and staff members to use as a reference. Please note that I am neither a lawyer, nor American myself. If you have different legal cases and precedents, or heavily different interpretations of the cases summarized below, please send your feedback to Alastair for addition or correction to the present document.

Disclaimer:

Please be aware of the fact that this document is not intended as a valid legal advice. It is a collection of reference with added comments, which may be tainted by my foreign point of view. In other words: you will see what I found by browsing various search engines, but as far as my interpretation goes, don't take my word for granted...

Liability Issues: MUD Hosts and Admins

Legal Background

The base law applying for liability issues is part of the 1996 "Communications Decency Act", which was partly changed in 1997 after a legal battle on first amendment issues. What remains unchanged, though, is what I found to be the base on liability: 47 U.S.C. ?230

In short, what is written here is that one hosting party cannot be held accountable for the content published by third parties on their services, and reversibly, that they may take any steps to restrict access to hosted material they somehow find objectionable, regardless whether or not this material is constitutionally protected. This law has no influence on criminal law, though. It merely states that the publisher of another one's work on the internet is not to be held liable for that content - and that he may remove what he finds unsuitable.

Interpretative Examples:

MUD Hosting Service

John runs a MUD hosting service, johnsgames.com. One of the hosted services is MachoMUD, advertised as an adult-themed MUD.

Timmy, aged 14, decides that the theme of the MUD looks interesting and disregards the age disclaimer. Timmy's mother finds him involved in cybersex on MachoMUD and decides to sue. John won't be held liable for what happened on machomud.johnsgames.com, although MachoMUD's owner could be successfully sued if, in fact, he didn't clearly announce that his place wasn't suitable for minors.

MUD Admins

Frank runs TweetieMUD, a game whose public is mainly aged between 12 and 16. One day, while Timmy is playing TweetieMUD, Coold00d3 logs on and starts shouting obscenities on the global channel - right at the moment where Timmy's mother is checking over Timmy's shoulder what he's doing.

Timmy's mother's only option is to mail Frank (or page him if he's online), inform him that she finds Coold00d3's behaviour objectionable, and politely request that Frank does something to prevent this from happening again. If Frank decides to ignore her request, there's nothing she can do at all.

Legal Precedents

AOL vs. Zeran
In this case, which began in the district courts of Virginia (home to AOL) in 1997 and ended at the Supreme Court in 1998, the plaintiff, Mr Zeran, who had been defamed by another AOL user on AOL's boards, tried to sue AOL. All courts decided that AOL was not to be hold liable since they were merely acting as a host for a third party.

AOL vs. Doe
This case is similar in essence to the Zeran case. The major difference here is that not defamation, but criminal acts where involved (child pornography). The case is up for Supreme court at the moment, but so far, AOL's immunity has hold through two instances.

You will note, however, that the Florida Court of Appeals filed a couple of questions to the Supreme Court: whether the law is applicable to facts which happened prior to §230's effective date, whether it preempted Florida Law and whether a hosting service who was notified of defamation on its services still benefits from immunity. The answers of the Supreme court may have a heavy influence on future cases.

In March 2001, the Florida Supreme Court ruled to uphold the immunity in this case. A complete review of the decision may be found on Gigalaw.com." Gigalaw.com links to this page: http://www.gigalaw.com/articles/2001/burke-2001-05.html

Censorship and Free Speech Rights

It is important here to highlight one general principle: The USA's First Amendment does not allow any individual to say whatever he likes wherever he likes. What it does is protect any individual's right to express himself publicly without governmental censorship. No more, no less. That being said, how does that translate to Internet speech?
As stated above, 47 U.S.C. §230 also allows a host to take steps in order to remove content they find objectionable. The landmark case here would be AOL vs. Cyber Promotions, which is also the "father" of all anti-spam cases.

Internet old-timers will remember either Cyber Promotions or the name of its manager, "Net-legend" Stanford Wallace. Wallace's company had a very long track record of sending huge amounts of unsolicited commercial E-mail, aka spam, throughout the internet for several years.

What lead to this case was AOL's decision to first completely filter out Cyberpromo's spam, and later to allow their users to selectively filter it out, default being filter on.

The Supreme Court's ruling was devastating and set the pace on First Amendment issues on Internet Services. In short, the Court underlined that "the guarantees of free speech ... guard only against encroachment by the government and 'erec[t] no shield against merely private conduct.", and that since AOL's servers were private property, Cyber Promotions did not have any rights to communicate on said private property.

Interpretative Example:

MUD Admin

Frank, admin of Tweetie MUD, decides to remove Coold00d3's access to the global channel on TweetieMUD after Timmy's mother notified him of the obnoxious behaviour. In addition, Frank also deletes several notes posted by Coold00d3 on the MUD's discussion boards and removes his posting capability. Finally, he threatens to permanently ban him from TweetieMUD if Coold00d3continues his behaviour.
None of Frank's actions do provide Coold00d3 with any possible grounds for a first amendment lawsuit.

And outside US?

Of course, the situation largely varies from country to country. In Europe, German ISPs and hosts enjoy the same type of immunity as their American counterparts. In France, though, ISPs and hosts are held liable for the content a third party provides on their installations. Finally, in UK, there are no landmark cases which ended in a ruling, yet one recent case ended in a settlement wherein the ISP paid a healthy sum to the plaintiff to have him drop the suit. This implies that the ISP most certainly recognized a serious risk to lose in court. You can find more details on the case here.

Closing Remarks and Credits

As you will know, law and its interpretation is an evolving matter. What is true today may be changed tomorrow. As per the date of the initial writing of this document, though, there is no such thing as Freedom of Speech on a MUD Service, and there is no legal ground at all for suing a MUD who has decided to limit an offender's access to in-game communications. Technically, as long as the MUD has no obligations deriving specifically from its nature or theme, the MUD isn't even obliged to post a disclaimer of any sorts.

It is the author's personal belief, though, that adding a "help disclaimer" to your MUD doesn't do any harm at all. To the players, even if you feel you were treated unjustly by the immortals, your only option is to disconnect and look for another place to play. Threatening to sue a free game written and maintained for the enjoyment of many won't lead you to anywhere.

Thank you's go to the various members on the Mud Connector's discussion forums that participated in the debates.
I'd like to specially thank Polly, Helena, Avenger and KaVir who contributed most actively to those often-endless threads. On the same level, thanks to Benjamin Draper and Kyra Skydancer for additional input.

For comments and / or additions, changes or deletions, please do not contact the current host of this document. Instead, e-mail Alastair.

This document is copyrighted by Alastair@Solestria, Spring 2000.