17 Feb 2000

By CARL S. KAPLAN

Another Legal Defeat for Victim of Online Hoax

Kenneth M. Zeran, a low-key but determined Seattle resident whose name will be forever linked to one of the seminal cases in Internet law, has been handed another defeat in his five-year legal battle to seek redress for an online hoax.

Last week, a three-judge panel of the United States Court of Appeals for the 10th Circuit in Denver rejected all of Zeran's claims against the owner of a radio station which, Zeran contended, recklessly publicized a bizarre cyberspace prank against him.

The decision appears to mark the final chapter in the Zeran saga, legal experts said. It also illustrates a hard fact of life: Sometimes there is no legal remedy for those who suffer wrongs.

The outcome of the case is "not fair," said David Sheridan, a lawyer based in Albany, N.Y., who wrote a law review article in 1997 about Zeran's battle. "He got damaged and he didn't get a remedy. But life isn't fair."

The seeds of Zeran's legal immortality were sown on April 25, 1995, six days after the bombing of the Oklahoma City federal building. On that day, someone posted a message on a bulletin board on America Online, announcing the availability of "Naughty Oklahoma T-Shirts," bearing slogans like "Rack'em, Stack'em and Pack'em -- Oklahoma 1995," according to legal papers.

The message, posted by someone using the screen name "Ken ZZ03," gave a number for phone orders. The number provided belonged to Zeran, 52, an artist, photographer and film maker. Zeran said he had nothing to do with the posting. The true identity of Ken ZZ03 remains unknown because he gave AOL false information when signing up for a trial account.

On the day of the posting, Zeran received threatening phone calls, he said in court papers. More postings under the screen names "Ken ZZ033" and "Ken Z033" appeared in the following days, prompting more calls.

Zeran notified AOL of the postings and asked the company to delete them and take steps to prevent his phone number from appearing in future postings. AOL declined to help, and the postings remained online for at least a week. Zeran then sued AOL for negligence. In November 1997, a federal appeals court ruled that under a provision of federal law, AOL was immune from being sued by Zeran -- or anyone else -- over material on its system that was created by a third party, even if it had been informed that the material was false and hurtful.

Some legal experts hailed Zeran v. AOL as a decision that gave a boost to free speech online by eliminating the liability of Internet service providers for the third-party information they host, and thus less likely to monitor and censor that information. The case is studied in cyberlaw seminars in law schools around the country.

The effects of the AOL postings snowballed into the case decided by the 10th Circuit last week. On April 29, 1995, an AOL subscriber sent an e-mail with a copy of the original posting to Mark Fullerton, known as Mark Shannon, a host of the "Shannon & Spinozi Show," a morning radio show on KRXO FM in Oklahoma City, according to legal papers.

Before beginning his shift on May 1, 1995, Shannon tried to e-mail Ken ZZ03 through AOL, but was told that the sender was not a known AOL member. He did not attempt to call the phone number in the posting because, he said, it was before business hours in Seattle.

On the air, Shannon discussed the message, reading the slogans and Zeran's number and urging his listeners to call Ken ZZ03 and complain, according to legal papers. On that day, Zeran received about 80 angry, obscenity-laced calls from the Oklahoma City area, including death threats. Zeran later discovered the connection to the radio station and asked it for a retraction, which it gave him.

In his second lawsuit, Zeran sued Diamond Broadcasting Inc., then the owner of KRXO, for defamation, false-light invasion of privacy and intentional infliction of emotional distress. In a nutshell, he claimed that by failing to verify the information in the AOL posting, KRXO harmed his reputation and caused him personal anxiety.

In its decision, the court made short work of all of Zeran's legal arguments. For one thing, the court said, there could be no defamation because there was no evidence that Zeran's reputation was damaged -- the key element in a defamation action. After all, no one in Oklahoma City who heard the broadcast knew Zeran, and no one in Seattle who knew Zeran heard the broadcast.

Further, the court said that for Zeran to win on his other claims, he had to show that Shannon's conduct in accepting at face value the contents of the e-mail was "reckless" and not merely negligent -- a very high standard of fault. But Zeran failed to show that Shannon had serious doubts about the truth of the information he read over the air, the court found.

In a telephone interview this week, Zeran expressed frustration with the decision but said he did not perceive himself as a victim of the legal system. "This was a noble cause. I don't regret bringing" these cases, he said.

Zeran added that his latest case against KRXO was an attempt to raise journalistic standards in the Internet age. He asked: "If you went to an e-mail screen and saw an e-mail from someone you didn't know -- an anonymous e-mail -- and the content was provocative and incendiary and pointed toward a particular person, would you publish that information in a newspaper? That's the essence of this case."

Reached by telephone, Shannon, who said he left KRXO two years ago, declined to comment on his reasons for reading the posting.

Robert D. Nelon, a lawyer who represented Diamond Broadcasting, said in an interview that Shannon had no reason to believe or suspect that the posting he received was illegitimate.

"I don't think anyone can not feel sorry for Ken Zeran," said Nelon. But he added that Zeran had no right to recover damages from KRXO, or AOL for that matter. The person he should sue is the one who posted the messages on AOL, and that person remains anonymous, he said.

Jay Black, a professor of media ethics at the University of South Florida who filed an affidavit on Zeran's behalf in the radio station case, said that he was disappointed by Zeran's recent loss.

"It struck me that somebody ought to say, 'Gee Ken, we're sorry,'" he said. "Apparently, that's not going to happen. Anyway, I laud Ken for tilting at windmills."

CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.