As the World Wide Web becomes a more integral part of our society there is a growing perception amongst computing science students that they must have their own page on the web, and they want to use computing science departmental resources to mount that page. Further, the students may wish to have links from their page to other pages, and from departmental pages to their own. The connections and the content of student pages presents some significant concerns for both the computing science department and the institution as a whole. The responses to these concerns vary from a don't care attitude to a complete ban on student web pages. This paper will examine possible ethical and legal problems associated with student web pages, and the current practice at a number of institutions. The paper will also discuss some possible solutions to the student web page problem.
Keywords: Student Web Pages, Liability, Freedom of Speech, Defamation, Publisher, Distributor
With the increasing popularity of internet web pages there has been a growing interest amongst students to have home pages. That desire is leading students to ask that they be permitted to mount their own home page on the equipment of their university or college.
There are a certainly a number of reasons that students might want to have home pages accessible to the world wide web, but there are also a number of reasons why universities and colleges might want to not permit students to use them as internet service providers.
This paper will discuss the issue of student home pages. The reaction of academic institutions to the student home page issue can vary from no pages permitted to pages being required. In the next section, a brief summary of existing and potential policies regarding student home pages will be given.
Student home pages can cause various problems depending on the policies of the university or college. Libel and slander, copyright violations, pornography and harassment are all possible issues that any internet service provider may have to deal with. Courts have held internet service providers to various levels of liability 1 depending on their policies regarding content. While there is a small amount of case law on bulletin baords, there is almost none on Web Pages and most of the case law that is available is American. The third section of this paper will discuss possible legal issues that a university or college should consider before deciding on policies regarding student home pages.
An understanding of legal issues should be important when the institution is deciding on whether to allow student home pages on their equipment, but there must be other considerations as well. Some different approaches may result in similar legal considerations, but for other reasons one approach may be superior to another. The fourth section will look at the issue of student home pages from various ethical and social perspectives in an attempt to consider which approach might be best.
What is best for one institution may not be optimal for another. Hardware, communications facilities and faculty are all resources that differ from institution to institution. The final section will summarize the arguments and will indicate what I believe is the best option for my institution, Malaspina University College.
In this section I will discuss existing and possible policies regarding the use of academic institution resources for universally accessible student home pages. The existing policies identified in this paper, except for the policy at Malaspina, were derived from "surfing the net" and not by asking the system administrators. The rationale for this approach was that, in considering the legal issues associated with home page content, the courts may consider what the browser of the web page believes about the content and not necessarily what the institutional policies in the department office say.
Some institutions, and some instructors, require students to construct and post home pages on departmental equipment as part of the students course work. These pages may be graded or they may be a required component for graduation. The fact that these pages have been made a requirement of the institution means that an agent (faculty member or other employee) of the institution has examined and theoretically approved the content of the page. The page may have changed since it was examined, but the presumption that the page was examined by an employee of the institution means that this particular policy has a significant impact on potential liability. 2
A slight variation on the above policy is allowing the student page, but not allowing the student access to the page once it has been posted. In a unix system the ownership of the files and directories of the home page could be changed and the protections set so that the student could no longer change the page. As part of this policy the department would have to seriously consider how to deal with links to other pages. This policy may lower the risk that there is inappropriate content, but it may heighten the liability of the institution if there are content problems.
The practice that institution and instructors have had regarding required pages has been that there would be links from the department's, the instructor's or the course's home page to these student pages. As well, it is quite common that graduate students have home pages and that these pages are linked to the department home page.
Some departments allow their students to have home pages but do not link the student's page to their departmental page. These pages can be found using a NetscapeTM search and thus they are not invisible to the outside world. Many of these student pages provide links back to their departmental home page thus drawing a connection between their page and the pages of the institution. As well, the fact that the department has permitted its resources to be used to mount the web page can be observed by the viewer of the page merely by looking at the URL.
Where the pages are not linked to the departmental home page there may be less of an expectation that content is being monitored by the institution. Some departments monitor content by merely responding to complaints. If the department receives a complaint about a page then the department may examine and choose to delete the page.
At the present time the Computer Science Department at Malaspina University College, as with a number of other institutions, does not allow its equipment to be used for student home pages.
In the past, Malaspina University College did allow students to use its facilities for home pages and those pages were linked to the departmental home page. The department did not examine the students' home pages unless there were complaints. Several events led to an interim decision that students were not to be permitted to have home pages. The most significant of these events was the fact that one of the students put pornography on his page. This action resulted in 50,000 hits over a single weekend.
The content of student home pages, or web pages in general, leads to some interesting questions regarding liability issues. While it is unlikely that a student having pornography on their home page would result in financial loss for the institution, there is clearly the possibility of bad press that could result if the media found out about the pornography. Other issues may result in the institution being held liable for the content of its student's home pages. Since harassment may be treated in a similar way to defamation in terms of vicarious liability, I will discuss only copyright violation and defamation. In the discussion of copyright and defamation I will make reference to some American case law since there is little Canadian case law on these topics as they relate to computers. While there are some differences in the standards for libel between Canada and the States, the main difference being that Canadian public officials have greater protection, many of the legal principles in terms of defamation and copyright violation are be similar.
If a student's home page contains a defaming remark then one of the issues that the court will need to decide is whether the university or college, in allowing the student to have the public home page, was acting as a distributor or as a publisher. A distributor is something like a book store whereas newspapers are publishers.
For obvious reasons, a book store cannot be held liable for the content of every book or magazine it sells, 3 but a publisher can. The rationale for a publisher being held liable is that it has control over content, and that control is far greater than the control a book store has.
The problem any internet service providers face is whether they are more like a newspaper or a book store. In Cubby Inc. v. CompuServe Inc. 4, the court considered whether CompuServe had libelled Cubby Inc. CompuServe had, as part of its service, a forum called Rumorville. The content of the forum was controlled by an independent contractor although CompuServe maintained the right to remove those things it did not find appropriate (in the same way that a book store has the right to not sell a book). Having determined that CompuServe should be considered a distributor, the court stated 5
Given the relevant First Amendment considerations, the appropriate standard of liability to be applied to CompuServe is whether it knew or had reason to know of the allegedly defamatory Rumorville statements
A more recent court decision involving Prodigy6 found that an internet service provider can be found liable for content found on its server. The difference between the two cases is that, according to the court, Prodigy held that it monitored the content of the postings on its server and as a result, the court viewed it as a publisher since it allegedly reviewed items placed on its server.
This distinction is very important in terms of implications for a student web page policy. Faculty may not understand what constitutes libel and, as content crosses a border, the rules change. The standard for what constitutes libel is different in Canada and the U.S. and it is not obvious how the trade off between the principle of freedom of speech and the protection of reputation will be settled.1
A lack of understanding about libel law may not be sufficient to protect the institution from liability. As a result, reviewing the contents of the web page is a double edged sword. If the contents are reviewed, there is less chance of libelous content being posted, but if the libelous content passes the inspection of the faculty member then the institution may be found liable for damages because the institution "had reason to know" that the content was libelous.
The liability that an academic institution may face as a result of copyright infringement is based on a similar principle to that for libel. The institution may be found liable if it knows of a violation and does nothing to stop it. Further, copyright in Canada is a strict liability7, which means that intentions are irrelevant. Copying the content of another person's home page or some other publication may be a violation of copyright. There are some provisions that allow small amounts of copying for academic purposes, but it would be hard to argue that in the context of a web page. It has even been suggested that links to a copyright work may be violations of copyright.
Several internet service providers have been found guilty of contributory copyright infringement and the basis of the finding was that the ISP knew that the work was copyright and did nothing to stop the reproduction8. As well, the Software Publishers Association has started to file copyright violation cases against ISPs.
Again, since the rule appears to be that the ISP is liable in a contributory or vicarious way if it knows or ought to know that it has an infringing work on its site, there are implications as to what the best policy might be regarding student home pages. A policy of examining the contents may expose the institution to greater liability.
However, just because the university or college has no monitoring policy, it may be possible to subpoena the log files of the system and determine that the offending page had been examined by an agent of the institution which would still mean that the institution can be held liable if it took no action when finding an offending page.
The issue of liability does not completely determine that student home pages should be prohibited, nor does it mean that home page contents should not be monitored should they be permitted. While there may be some increased exposure to liability if the college or university examines web page content, there will be a decreased risk of other problems - such as embarrassment that the institution might suffer for becoming known, ever so briefly, as a porn site. In this section I will discuss, from ethical and social perspectives, the pros and cons of having the academic institution act as an ISP for student home pages.
There are some positive reasons for allowing student home pages. These include marketing of the student's abilities by allowing the student to have their resume on line. Home pages give the students a creative way to introduce themselves to other students - and other potential students. The student web pages may act to promote the program of the institution. The student web pages may also allow some local businesses to see the students' work and be more inclined to contact the student or the institution to offer some work.
Student home pages may also teach the students about marketing themselves and about internet programming. The development of sophisticated pages may be an inducement for the students to learn additional things about the web or about programming languages.
Unfortunately, some of the positives listed above can also be negatives depending on the student. While the students could conceivably promote a program, they could also damage the program. They could post material that exposes themselves, and potentially their institution to some liability, and, of course, we have all seen students who spend too large an amount of time on things that they perceive as being interesting, but which their instructors do not see as being worthwhile.
With web pages, the risk of students wasting time is greater. Web pages could conceivably be considered part of one's identity. I am sure that some faculty at academic institutions have felt some pressure to have a high quality page. Students will also feel such pressure. If the web pages continue to grow in importance, the risk that students will waste excessive amounts of time on their home pages will grow as well.
The marketing issue is also a potential concern. While other institutions have had similar concerns with their students' home pages the following example illustrates a very significant problem. The University College of the Fraser Valley has allowed student home pages and noticed a possible problem. Click here to see the page9.
There are several possible problems with commercial content on web pages. Those competing companies with no "endorsements" on student web pages may feel that they have a right to equal treatment. As well, if the content of student web pages is too commercial, local for profit internet service providers may feel that the local academic institution is competing with them. Local businesses will tolerate and even encourage non-threatening competition where they believe some educational purpose is being served, but where the local business believes that it is competing with a government subsidized business it will rightfully complain. Care must be taken to ensure that student web pages do not have commercial content.
If student web pages are to be permitted, then some consideration must be given to the issue of resources. The experience at Malaspina with the 50,000 hits in one weekend certainly limited bandwidth availability for other users. There is also disk space allocation and student lab access that all must be considered as possible detriments to student home pages.
As well, the potential need to monitor student web pages may mean that faculty time is spent evaluating the content of the page to determine its acceptability. This may mean that faculty will also need to spend some time learning what might be considered defamation or copyright infringement.
Faculty have suggested that a possible alternative for students is that they can use commercial ISPs to post home pages. This has the potential of excluding some students from participating and it also does not allow for many of the positive things that student pages can accomplish.
Computer Science departments often get calls from local businesses looking to hire students for various tasks. I have received several calls this year for students who can develop home pages. If our students have well designed home pages it may assist our computing programs in finding jobs for our students and in promoting the institution's computer science program to potential students. These benefits will be difficult, if not impossible to realize if the students are told to use commercial ISPs.
I would preface this by stating that there is very little in the way of case law regarding the role of internet service providers. It is likely that the courts would view students and academic institutions differently from the way the courts treat commercial ISPs. If an institution wishes to absolutely avoid the potential liability that student web pages can cause, then that institution should not allow them.
I believe the correct course of action would be to allow students to have public web pages, but that there be very clear rules established that, if violated, would mean that the student would lose the privilege of having a home page. The rules, once established, should be clearly stated in the departmental home page and the home page should include a contact person for complaints that explains the process that is followed when a complaint is filed. The departmental home page could also have links to the home pages of students, but student home pages must have a prominent link at the start of their page to the departmental policy statement on home pages. Removal of this link should be considered a violation of the policy.
The rules should include a prohibition on defamatory content, copyright infringement, hate propaganda, statements that could be construed as harassing, pornography and commercial content (except for personal content such as a resume describing the abilities that they are enhancing at the institution). The department might want to include additional rules but for legal reasons the above should be included.
One of the additional rules that the department may want to consider is links to other pages or sites. Many people's pages have links to other pages and the content of the page that is linked to may not be controlled by the person that is linking to it. It would be appropriate, considering that there is very limited case law on web pages, to err on the safe side and deem that if a student's page has a link to a page that would be a violation of the policy, then the student will be deemed to have violated the policy. This approach will ensure that students are more careful when linking to other pages, and it also eliminates the excuse - "The page was fine when I looked at it, they must have changed it since I made the link".
The statement about the policy regarding complaints should include a clear indication that the content included in a person's personal web pages is determined solely by that person and that neither the department nor the institution examine the contents of personal web pages unless a complaint is made. Further, the policy should clearly state that should a complaint be filed then the page will be examined and, where appropriate, deleted.
Although not for publication on the departmental page, the department should have a very strict policy regarding violations. Perhaps, on a first offense, the student would lose the web page privilege to the end of the following academic semester (minimum 4 months) and on a second offense lose the privilege forever. The potential of losing the privilege should act as an incentive for students to limit questionable content.
I believe that the above strategy of posting a disclaimer that the institution does not monitor content, and further the policy of deleting offending pages once a complaint is made would, with very high probability, eliminate the liability problems associated with student web pages. The disclaimer combined with actions appropriate to the content of the disclaimer and the content policy should be sufficient to ensure that a court would view the institution as a distributor and not a publisher.
Student home pages can provide benefits to both students and their institution. With the proper precautions, student home pages will not be a significant problem for the post secondary institution although they will require some work both in educating students and faculty in what is acceptable and what is not.
The author wishes to thank the students of Malaspina's Fall 1996 sections of CSCI 297 (Technology and Society) for suggestions about the pros, cons and policies regarding student home pages.
2 Liability issues are discussed in detail
in section 3 but the major problem here is that if content is found to be
problematic then the institution could very well be found liable
3 In Smith vs California
361 US 147 the court ruled that a book seller could not be convicted of a
violation of the State's pornography laws unless it knew of the content
4 Cubby Inc. v. Compuserve Inc
776 F. Supp. 135 (S.D.N.Y 1991).
5 Ibid. page 140-141.
6 Stratton Oakmont Inc. v.
Prodigy Inc. Co., 1995 WL 323710 (N.Y. Sup. Ct.).
7
Sookman (1996 REL 2) Computer Law 3.7 (n) (i)
8 Sega Enterprises Ltd. v. MAPHIA
30 U.S.P.Q. (2d) 1921 (N.D. Cal. 1994)
Religious Technology Center V. Netcom On-line Communications Services
Inc. 37 U.S.P.Q. (2d) 1545 (N.D. Cal 1995).
9 The page was last observed on
April 16th, 1997. If it is not available when you try viewing it, a copy of
it is is available by clicking
here .
Dominique Roelants
Questions may be addressed to:
Dominique Roelants
Department of Computer Science
Malaspina University College
900 5th St.
Nanaimo B.C.
V9R 5S5
E-mail: droelant@mala.bc.ca