Pardon me for interrupting a fine theoretical discourse, and summarizing the
dialog for the benefit of our moderator, but perhaps we should take a look
at the actual application under discussion?
The application itself reports who it blocks. When access is attempted,
the site is listed as blocked. What I am unsure about: is the precise
reason for blocking displayed? When there are multiple reasons?
However, the reasons can be deduced, without reverse engineering, by
selecting the individual blocking class, and re-testing the URL.
Therefore, I believe that we have both elements:
(a) the blocking is reported;
(b) the reason is evident to the user.
So, are the reasons defamatory to the blocked sites?
Will some fine lawyer undertake to contact and ask them?
To take examples, from the paper:
the anti-censorware site of Peacefire <http://www.peacefire.org/>
is listed as containing
"Violence / Profanity, Partial Nudity, Full Nudity,
Sexual Acts / Text, Gross Depictions / Text, Intolerance,
Satanic or Cult, Drugs / Drug Culture, Militant / Extremist,
Sex Education, Questionable / Illegal & Gambling, Alcohol & Tobacco".
Church of the SubGenius.
Banned in every category except sex-ed.
The Nuclear Control Institute.
"Militant / Extremist"
"Violence / Profanity"
"Questionable / Illegal & Gambling"
Anti-nuclear-bomb articles from the Tri-City Herald newspaper.
"Violence / Profanity"
"Militant / Extremist"
"Questionable / Illegal & Gambling"
The Marston Family Home Page, with the usual round of pictures of
Mom, Dad, the kids, the dog, etc. Entire directory blocked for
"Militant / Extremist, Questionable / Illegal & Gambling",
apparently just because of this paragraph in young Prescott's section:
In school they teach me about this thing called the Constitution
but I guess the teachers must have been lying because this new law
the Communications Decency Act totally defys [sic] all that the
Constitution was. Fight the system, take the power back, WAKE UP!!!!!
"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...
>
Ed Gerck wrote:
> 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?).
>
> Anyway, the idea of blocking and not even telling you what is being
> blocked is a "trust me" procedure -- a well-known nothing. Trust me ;-)
>
"Michael Froomkin - U.Miami School of Law" wrote:
> Presumably they make some representation somewhere - in the manual? -
> about what they block or why?
>
Ed Gerck wrote:
> "What they block" does not seem to be defamation, it seems to be freedom of
> choice. The way I understand it, a defamation claim would have to be based on
> a two-part test: (a) they have to publicly report "who they block" (so, there is
> cause for action by someone in that list) and (b) they have to say they do it for a
> reason considered to be derogatory, offensive, etc. (so, there is actually
> defamation).
>
> Thus, "why they block" (the reason, item b above) alone cannot be defamation
> either, IMO, because they do not report who they block.
>
> Otherwise, we would support the funny idea that someone could suffer defamation
> without ever being reported by any means. A very contradiction with the
> word "fame" (report) in defamation.
>
