Negligent Publication

Like traditional print publishers, on-line publishers may face claims for inaccurate, erroneous, or "dangerous" information. Early case law suggests that on-line publishers, like other media entities, will not be held liable unless they have a high degree of awareness of the probable falsity of the information published.

In Daniel v. Dow Jones & Co., Inc., 520 N.Y.S.2d 334 (N.Y. Civ. Ct. 1987), an investor sued Dow Jones alleging that its on-line information service had negligently published false and misleading financial data on which he relied. The news item was datelined Calgary, but did not mention that the prices quoted were in Canadian rather than U.S. dollars. The court held that New York's long-standing rule that "a news service is not liable to its readers for negligent false statements" applied to computerized transmissions. "The relationship between the parties here is . . . functionally identical to that of a purchaser of a newspaper . . . . [N]ew technology does not require a new legal rule merely because of its novelty."

The basic standards for liability on a negligent publication theory probably will not change in the cyberspace context. In general, the courts strongly favor First Amendment concerns, even when the subject matter is potentially dangerous. For example, in Herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987), cert. denied, 485 U.S. 959 (1988), Hustler Magazine was held not liable for the death of a fourteen year old boy who tried the techniques described in an article entitled "Orgasm of Death," and hanged himself in the process.

However, the courts will draw lines where it finds the danger to the public to be too great. The difficulty in drawing these lines is illustrated by two quite similar cases involving Soldier of Fortune Magazine. In each case, the magazine ran an advertisement for what turned out to be an assassin. Wrongful death actions were filed in both cases, but the court found the magazine liable in one case, but not the other. The critical difference was the exact wording of the ad: in one case, the court found the ad to be "ambiguous," while in the other, the ad "made it apparent that there is a substantial danger of harm to the public." Compare Eimann v. Soldier of Fortune Magazine, 880 F.2d 830 (5th Cir. 1989), cert. denied, 493 U.S. 1024 (1990) with Braun v. Soldier of Fortune Magazine, 968 F.2d 1110 (11th Cir. 1992).

The ad in Eimann ran, "EX-MARINES - 67-69 'Nam Vets, Ex-DI, weapons specialist-jungle warfare, pilot, M.E., high risk assignments, U.S. or overseas." The ad in the Braun case ran, "GUN FOR HIRE: 37 year old professional mercenary desires jobs. Vietnam Veteran. Discrete [sic] and very private. Body guard, courier, and other special skills. All jobs considered." Given the similarity of the ads, the differing results in the two cases may be explained by a difference of opinion between the two Circuits, or by the fact that Soldier of Fortune was arguably "on notice" of the potential problem by the time the Braun ad ran.