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France and Germany Say ''Non'' and ''Nein'' to Unmoderated Discussion Groups
Posted by Ernest Miller on Thursday, May 30 @ 12:14:15 EDT Free Expression
Recently, The Register reported that tennis star Steffi Graf has won a decision against Microsoft for postings made to unmoderated forums of photoshopped images that superimposed Ms. Graf's face onto nude or pornographic bodies (Tennis star aces MS over faked nude pix). The problem with the decision is not that Ms. Graf had the photos removed, but that she wanted to force Microsoft to sign an agreement that the photos would never be reposted. To do this, Microsoft would have to constantly monitor these heretorfore unmonitored forums. Such monitoring would be financially prohbitive and would open Microsoft up to even greater liability in the future if other defamatory postings were made. Unfortunately, this German court decision sided with Ms. Graf. The will essentially mean the death of unmoderated forums in Germany. Slashdot readers struggle to handle the fact that Microsoft is on the side of good in this case (Steffi Graf Wins Case Vs. Microsoft).

One of the problems the German judge saw, apparently, was that Microsoft's EULA gave others permission to redistribute the photos; sort of a GPL for photos. The idea on Microsoft's part, I imagine, of forestalling copyright violation suits when the posted photos were copied. The judge has now created an interesting catch-22, in which attempting to minimize copyright liability increases liability for defamation when one runs an unmoderated forum. The judge was also concerned with the fact that the website was framed in such a way (using standard MSN graphics and advertisements) that people might be confused that it was actual Microsoft content. The forums were not that confusing. Heaven forbid that someone hosting unmoderated forums should advertise or brand them.

But the Germans don't have a monopoly (unlike Microsoft) on contempt for unmoderated forums. A recent decision in a French Bankruptcy court held a website liable for libelous postings to an unmoderated chat room (TRIBUNAL DE GRANDE INSTANCE de Lyon, Chambre des urgences, 28 mai 2002 [French]) [via Politechbot]. The court decided that, because it created specific forums for complaints about various companies, the website was required to monitor the resulting postings for libel.

Bonus international law angle. Combine this with long arm statutes and French companies and German tennis stars can initiate similar lawsuits against US websites.

 
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Related Links
· The Register
· Microsoft
· photoshopped
· Tennis star aces MS over faked nude pix
· Slashdot
· Steffi Graf Wins Case Vs. Microsoft
· TRIBUNAL DE GRANDE INSTANCE de Lyon, Chambre des urgences, 28 mai 2002
· Politechbot
· More about Free Expression
· News by Ernest Miller


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