The following copy of the Record on Appeal is provided for the convenience of participants in the Eighteenth Annual Moot Court Competition in Information Technology and Privacy Law. Only the official printed version should be considered authoritative.
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IN THE SUPREME COURT OF THE STATE OF MARSHALL
HARRY P. WOLF,
Plaintiff-Appellant,
v.
HACKLIBRARY INC.,
Defendant-Appellee.
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No. 99-404
RECORD ON APPEAL
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IN THE COURT OF APPEALS OF THE STATE OF MARSHALL
FIRST DISTRICT
HARRY P. WOLF,
Plaintiff-Appellant,
v.
HACKLIBRARY INC.,
Defendant-Appellee.
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No. 99-01-CV-3PO
OPINION AND ORDERNikros, Presiding Judge:
This is an appeal from the order of the Madison County Circuit Court, Judge Adam Jackson, granting summary judgment in favor of defendant HackLibrary Inc. and thereby dismissing the present action.
In reviewing a grant of summary judgment, we apply the same standard as the trial court: the evidence must demonstrate the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Marshall R. Civ. P. 56(c). Applying this standard, this Court affirms the trial court's award of summary judgment, although we do so on different grounds.
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Most of the facts relevant to this case are undisputed and are the subject of stipulations by the parties.
ChiPost.com is the World Wide Web site of The Chicago Post, a daily newspaper. ChiPost.com contains headlines and articles from the Post, along with advertisements, community information, and other material. On January 15, 1999, ChiPost.com was "hacked" by one or more persons who identified themselves as the "MP3 TERRORISTZ." The hackers replaced the newspaper's web site with a single web page containing sexually explicit images and language, a rambling diatribe against copyright laws and intellectual property in general, and an angry denunciation of attorneys and executives in the music industry.
The HTML source code for this web page contained additional material which was encoded as comments and therefore not normally displayed by most web browsers. This additional material (set forth in its entirety in Appendix A following this court's opinion) included condescending and critical statements about two prominent executives in the music industry, along with personal information pertaining to these executives. The parties have stipulated, for purposes of the defendant's motion for summary judgment, that the statements of fact concerning the plaintiff contained in the HTML source code are accurate.
Bennett Sirius, ChiPost.com's system administrator, discovered the hack within three hours and immediately took the
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site offline in order to restore its intended contents and to close the security hole which had made the hack possible. The site normally receives thousands of visitors each hour, although no access statistics were kept during the period that the hacked version was online.
HackLibrary Inc., a Marshall corporation, is the publisher of HackLibrary, a web site containing "hacker news andinformation" -- primarily information about successful hacker exploits. HackLibrary includes an archive where visitors can view copies of various hacked web sites. The archive bears a disclaimer stating that the copies of hacked sites are made available solely for purposes of academic research and public information. Advertising banners appear on most pages within HackLibrary, except for the hacked web site pages in the archive, and HackLibrary is financed by advertising revenues.
The HackLibrary archive includes copies of over two hundred different hacked web sites. In some instances, HackLibrary's own employees download a copy of a hacked site for inclusion in the archive; in other cases, the hackers themselves or other Internet users provide HackLibrary with a copy of the hacked site via e-mail (usually without identifying themselves to HackLibrary). HackLibrary has no formal policy for determining which hacked sites to include in its archive, although only very minor sites are likely to be excluded. Many Internet users who
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view hacked sites in HackLibrary's archive find them by browsing the archive out of curiosity or academic interest, although others reach individual pages within the archive directly, often by means of a web search engine.
There are several similar hacked site archives on the web, including AntiOnline, Hacked Sites Dot Com, Hacker News Network, and 2600. There is considerable overlap among these archives, but only HackLibrary includes a copy of the "MP3 TERRORISTZ" version of ChiPost.com. HackLibrary obtained the copy on January 15, 1999, and made it available in its archive on January 18, 1999.
Harry P. Wolf is General Counsel for MoneyMusic, Inc., a prominent publisher of popular music, also incorporated in the State of Marshall. During the months following the hack, Wolf was repeatedly subjected to various forms of harassment. He received numerous e-mail messages on his personal America Online account and calls to his home telephone number at all hours of the night, the gist of which was roughly equivalent to the contents of the hacked ChiPost.com site. In particular, the e-mail messages and telephone calls insulted Wolf and ridiculed his handling of his personal and financial affairs.
In April 1999, Wolf learned that a copy of the hacked ChiPost.com site was still available on the web, in the HackLibrary archive. Wolf immediately informed HackLibrary of
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the harassment and asked that the copy of the hacked ChiPost.com site be removed from the archive, or that HackLibrary at least redact the references to him contained in the HTML source code, in order to reduce the likelihood that he would be subjected to further harassment. HackLibrary responded that it was merely saving copies of sites that had already been publicly displayed on the web, and refused to remove the hacked ChiPost.com site from its archive.
Wolf brought suit against HackLibrary for invasion of privacy, alleging that he has suffered damages as a result of HackLibrary's public disclosure of private facts concerning Wolf. The parties stipulated to facts (as summarized above) in lieu of extended discovery. HackLibrary subsequently moved for summary judgment on the following grounds:(1) under 47 U.S.C.§ 230(c), HackLibrary cannot be treated as the publisher of hacked web sites created by other persons; and (2) the publication is not actionable as an invasion of privacy because the information was already publicly available and is the subject of legitimate public concern.
The trial court granted the motion for summary judgment based upon§ 230(c), holding that HackLibrary was immune from liability as an interactive computer service provider. We find§ 230(c) inapplicable, believing that HackLibrary in fact is the
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provider of the materials that it selects for its archive, but we affirm on other grounds.
I. SECTION 230(c) IMMUNITYSection 230(c) of the Communications Decency Act of 1996 states as follows: "No provider of user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C.
§ 230(c). An "interactive computer service" is
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(f)(2).
An "information content provider" is
any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.47 U.S.C.
§ 230(f)(3).HackLibrary is both an interactive computer service and an information content provider, since it develops original content and distributes that content via the Internet. With respect to HackLibrary's archive of hacked web sites, however, HackLibrary maintains that it is merely an interactive computer service that distributes information provided by other content
providers --
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specifically, the original perpetrators of the hacked web sites. We disagree: a web site operator may not dredge up defamatory, infringing, or otherwise actionable information and post it on the web without liability simply because someone else was the original author.
II. INVASION OF PRIVACYThe State of Marshall recognizes the four traditional privacy torts set forth in the Restatement (Second) of Torts, including publicity given to private life, often described as the tort of public disclosure of private facts.
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind thatRestatement (Second) of Torts
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
§ 652D (1977).The last part of the definition, which excludes matters of legitimate public concern from liability, incorporates the protection of free expression that is mandated by the First Amendment.
The information disseminated by HackLibrary had previously been made available on the Internet for approximately three hours, until the original hacked site was taken down. Therefore, it cannot be said that the information was private at the time that HackLibrary added the hacked site to its archive.
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More importantly, the hacking of a major newspaper's web site is a newsworthy matter of legitimate public concern, and HackLibrary's publication of information regarding this event is therefore protected by the First Amendment.
The order granting summary judgment in favor of defendant HackLibrary Inc., and dismissing the action, is AFFIRMED.
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APPENDIX A
Comments contained in hacked version of ChiPost.com
POWER BACK TO THE PEOPLE. END THE STEALING OF PUBLIC PROPERTY FROM THE PUBLIC DOMAIN BY HARRY WOLF, GENERAL COUNSEL OF MONEYMUSIC, INC., AND CAREY SMITH, FOUNDER AND EXECUTIVE OFFICER OF MONEYMUSIC, INC.
MUSIC BELONGS TO THE PEOPLE AND THESE EVIL CAPITALISTS ARE MAKING INSANE AMOUNTS OF MONEY BY PROHIBITING YOUNG ARTISTS FROM DEVELOPING THEIR OWN CREATIVE MUSIC. MR. WOLF AND MR. SMITH HAVE USED THEIR POWER TO PREVENT NEW ARTISTS FROM PUBLICIZING THEIR MUSIC BY CLAIMING PRIOR OWNERSHIP OF THEIR WORK BY COPYRIGHTS OF SIMILAR WORKS. AS A RESULT, THREE SEPARATE, YOUNG STUGGLING ARTISTS ARE BURIED IN COURTS COSTS AND DAMAGES OWED TO THIS FAT LABEL COMPANY AND ITS FAT CAT EXECUTIVES. HOW CAN ONE OWN MUSIC THAT HAS NEVER EXISTED BEFORE?
ITS TIME TO TAKE MATTERS INTO OUR OWN HANDS AND LET THESE EVIL CAPITALISTS KNOW WHAT'S RIGHT! LETS GET HARRY AND CAREY!
SINCE MR. HARRY WOLF IS UNDER THE FALSE IMPRESSION HE CAN CONTROL WHAT LEGALLY BELONGS IN THE PUBLIC DOMAIN VERSUS WHAT SHOULD BENEFIT HIS POCKET BOOK, WHY DON'T THE PUBLIC LET HIM KNOW HOW WE THINK! ALLOW US TO FACILITATE YOUR FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH. YOU CAN REACH OUR UNLOVED COPYRIGHT ATTORNEY/THIEF OF THE PUBLIC'S MUSIC AT:
MR. HARRY P. WOLF
2120 GREENBAY ROAD
LAKE FOREST, IL 60045
HOME PHONE #: 847-555-0712
HOME EMAIL: HPWOLF@LAKEFORESTNET.COM
BORN: APRIL 4, 1951
SOCIAL SECURITY #: 078-05-1120AND FOR OUR FAVORITE FOUNDER AND CHIEF EXECUTIVE OFFICER OF MONEYMUSIC, INC., WE MUST EXPRESS OUR FEELINGS TO THE MAN WHO STARTED IT ALL. PLEASE CONTACT THE FAT CAT BOSS AT:
MR. CAREY J. SMITH
123 LAKE ROAD
EVANSTON, IL 60202
HOME PHONE #: 847-555-4957
HOME EMAIL: CJSMITH@SUBURBNET.COM
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BORN: JANUARY 19, 1948
SOCIAL SECURITY #: 745-00-4325SINCE MR. WOLF HAS BEEN INSENSITIVE IN HIS HANDLING OF YOUNG ARTISTS IN THE MUSIC INDUSTRY, WE FEEL HE IS DESERVING OF THE PUBLIC KNOWING THIS INFORMATION: WHILE MR. WOLF IS SO BUSY DESTROYING CAREERS, HIS FAMILY AFFAIRS IS IN A STATE OF DESTRUCTION AS WELL. MR. WOLF'S WIFE, DANIELLA LEE WOLF, IS CURRENTLY ACTIVELY PURSUING A DIVORCE, ALLEGING ABANDONMENT AND SEXUAL INFIDELITY. IN ADDITION TO BEING INCOMPETENT IN HANDLING HIS PERSONAL FAMILY AFFAIRS, MR. WOLF FILED FOR BANKRUPTCY IN 1982, JUST THREE YEARS AFTER LAW SCHOOL. ITS NICE TO KNOW THE INDUSTRY IS BEING DRAINED BY A FAT CAT CROOK WHO IS INCAPABLE OF HANDLING BOTH FAMILY AND FINANCIAL AFFAIRS!
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IN THE SUPREME COURT OF THE STATE OF MARSHALL
HARRY P. WOLF,
Plaintiff-Appellant,
v.
HACKLIBRARY INC.,
Defendant-Appellee.
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No. 99-404
ORDER GRANTING LEAVE TO APPEALThe Supreme Court of the State of Marshall hereby grants Plaintiff Harry P. Wolf leave to appeal the decision of the Court of Appeals in cause number 99-01-CV-3PO. On appeal, the parties shall address the issues considered by the Court of Appeals: specifically, whether the defendant is protected from liability by 47 U.S.C.
§ 230(c), and whether the plaintiff's actions give rise to an actionable invasion of privacy.
Pursuant to the parties' stipulation, the opinion of the Court of Appeals shall serve as the Record on Appeal to this Court.
Dated: July 27, 1999
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Bernard G. Woburt, Chief Justice
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