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from LEGAL BYTES Spring 1994, Volume 2, Number 1 Copyright (c) 1994
George, Donaldson & Ford, L.L.P.

In April, 1994, the NEN YORK TIMES ran a story about a lawyer in Phoenix, Arizona, who posted an advertisement for his legal services on Usenet, part of the Internet. According to the TIMES, the lawyer, Lawrence A. Canter, advertised his firm's availability to represent immigrant clients who might be eligible to be entered in the Immigration and Naturalization Services 1994 "Green Card Lottery." He did not limit his posting to legal or immigrant newsgroups, but instead flooded practically all the active Usenet groups that could be reached by United States providers -- some 9,000 newsgroups.

His advertisement resulted in the expected deluge of negative responses accusing him of "commercializing" the Internet, a grave breach of "Netiquette." Canter had received an estimated 30,000 reply messages before Canter's Internet access provider cut off his service. The service provider was quoted as "losing a week" of time dealing with the problems caused by the commercial posting. According to the article, Canter remains completely unrepentant, and in fact threatened to sue his Internet provider for cutting off his access.

Inevitably, as access to the Internet becomes easier, its commercial advantages are being realized -- by people with and without manners. Internet service providers themselves are taking economic advantage of the explosion of interest in the Internet. There is broad agreement, especially among long-time users, that flagrant commercial advertising is simply not acceptable practice on the Internet.

What's an Internet service provider to do if it wants to prevent its users from advertising? A provider who gets the reputation of letting commercial advertising originate from its connection may become a Net anathema. A flood of flaming responses to a commercial advertisement can take down a machine. Does a provider *have* to let its users post commercial advertisements?

Is this a legal or a social issue? Canter unquestionably has a First Amendment right to truthfully advertise his services as a lawyer, without undue interference or regulation by the government, as do other professionals. (In fact, this law firm recently defended Texas lawyers' rights to advertise without fear of criminal prosecution.) However, Canter has no constitutional right to post such advertisements using his access to a *private* Internet service provider; with very rare exceptions, the Constitution does not apply to private individuals or companies.

With the risk of being criticized for supporting "censorship," there is no law preventing a commercial Internet provider from setting terms for the content of its user's posting. (The answer is not so simple as to the university or government provider, though.) For the private service provider, the problem can be handled by contract. The big commercial services such as Prodigy and CompuServe put contractual limitations on the content of their subscribers' postings. As part of the conditions of service, the provider can require that the user not use the service to post or transmit commercial advertisements or solicitations. The contract can state that the sanction for not following this requirement is cancellation of the agreement to provide access (with the refund of prorated pre- paid subscription funds, of course). Users who want to post commercial advertisements simply have to go elsewhere. If a user nonetheless posts a commercial advertisement, the provider can cancel the service.

How does the provider define "commercial advertisement"? Anyway the provider wants to. For clarity, it should be defined in the contract, with the provider reserving the sole right to interpret the definition and apply it to a user's message. Relevant factors to keep in mind are (1) whether the posting is advertising his or her own services or goods, or recommending that of others; (2) whether the posting directly relates to the sale of goods or services, or is a general description of such goods or services; (3) whether the posting seeks a direct, commercial, response -- the purchase of something. The provider should retain the right to decide what is and is not a "commercial advertisement" under the contract.

As well as limiting the content of postings, the provider could also allow for limited posting of commercial messages in places where they are generally tolerated. Another safeguard would be to include a "force majeure" clause, which permits the cancellation of the contract in the event that a posting (like Mr. Canter's) generates such a vociferous response that it affects the provider's ability to run its system, or has a notably detrimental affect on the system's reputation.

Keep in mind that we are discussing *public* postings on newsgroups such as Canter's. While the private provider probably has the right to set terms on the content of private messages passing through its gateway, it is beyond the scope of this article to discuss the ramifications of enforcing such a restriction.

What about *this* newsletter, you say? Is it a commercial advertisement by lawyers? We post this letter in selected areas of the Net, and of course we hope to impress our readers with our knowledge of the law, and yes, we'd be quite pleased if paying business someday somehow results from it. But we're not offering to represent people in specific matters, or even matters in general. According to the NEW YORK TIMES account, Canter's posting was easily recognized as a solicitation of specific business -- a specific offer to represent persons in an identified legal matter. (Not to agree that applying for the green card lottery takes a lawyer's help.)

Inevitably, more and more ads will be coming to the Internet; that's the nature of an open system without central regulation. Private commercial access providers, however, do have the option through contract of preventing *their* system from being the doorway for unwelcome sales pitches.

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