1 Colum. Sci. & Tech. L. Rev. 1 (1999-2000)

handle is hein.journals/cstlr1 and id is 1 raw text is: THE COLUMBIA
SCIENCE AND TECHNOLOGY LAW REVIEW
http://www.1aw.columbia.edu/st1r
Dodging the Communications Decency Act when Analyzing
Libel Liability of On-line Services:
Lunney v. Prodigy Treats Service Provider like Common Carrier
Rather than Address Retroactivity Issue-
Neil Fried*
I. Introduction
Despite provisions of the Federal Communications Decency Act that prohibit treating
interactive computer services1 as publishers of third-party speech, the Appellate Division
of the N.Y. Supreme Court2 applied a libel analysis in its December 1998 decision in
Lunney v. Prodigy Servs. Co.3 In December 1994, teenager Alex Lunney sued Prodigy for
libel based on offensive e-mail and electronic bulletin board messages sent in September
'Cite as Neil Fried, Dodging the Communications Decency Act when Analyzing Libel Liability of On-
line Services: Lunney v. Prodigy Treats Service Provider like Common Carrier, 1 COLUM. SCI. &
TECH. L. REV. 1, (Nov. 29, 1999) <http://www.stlr.org/cite.cgi?volume=l&article=1>.
*Bachelor of Science in Journalism, 1991, Northwestern University, Medill School of Journalism,
Evanston, Ill.; Juris Doctor, 1994, Washington University Law School, St. Louis, Mo.; Attorney, Federal
Communications Commission, Common Carrier Bureau, Washington, D.C.
The views expressed in this article are my own, and should not be attributed to the Federal
Communications Commission. I thank Scott Gant for his invaluable support and advice in the writing of
this article. I also express my gratitude to J. Robert Lunney of Lunney & Murtagh L.L.C. and Michael J.
Silverberg of Phillips Nizer Benjamin Krim & Ballon L.L.P. for providing background on the Lunney
case. I am indebted, as well, to John Shaugnessy and Kyle Christensen of the West Publishing Co. for
generously providing access to WestLaw. I also thank Karen Sandler and the staff of the Columbia
Science and Technology Law Review, and congratulate them on the publication of their inaugural issue.
IThe CDA defimes an interactive computer service as any information service, system, or access
software provider that provides or enables computer access by multiple users to a computer server,
including specifically a service or system that provides access to the Internet and such systems operated or
services offered by libraries or educational institutions. 47 U.S.C. § 230(e)(2) (Supp. III 1997). For
further discussion of the CDA, see infra Part II.B.3.
21n New York, the Supreme Court is both a trial and appellate court. First appeals are heard in one of
the Supreme Court's appellate divisions. The state's court of last resort is its Court of Appeals.
3See Lunney v. Prodigy Servs. Co., 683 N.Y.S.2d 557 (N.Y. App. Div. 1998), leave to appeal granted,
93 N.Y.2d 809 (N.Y. argued Oct. 13, 1999).

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