net.wars: The tennis player that roared

by Wendy M Grossman | posted on 31 May 2002

It's been a good month for faked nude pictures of tennis stars, what with Anna Kournikova's legal action against Penthouse. The slavering male commentators at Eurosport who showed her first-round loss at the French Open, which started Monday, may be Penthouse's imagined audience.

Wendy M Grossman

Anyway, a long-time poster popped up on rec.sport.tennis this week to ask why no one was talking about Graf versus Microsoft. We had been too busy trashing Pete Sampras's (lack of) abilities on clay (he lost in the first round...again).

It seems that Steffi Graf took exception to having faked nude photos of herself posted on MSN Deutschland. As you do. The photos themselves, like Kournikova's in Penthouse, apparently had Graf's head pasted on top of someone else's nude body. The company removed the photos at her request according to standard notice-and-takedown policies across Europe, but refused to sign a guarantee that the photos would not be reposted. Graf sued. Microsoft lost. Microsoft appealed. Microsoft lost again. The company now stands to be fined if the pictures reappear.

Now, it pains me to agree with Microsoft, especially against someone whose tennis I've enjoyed (though not when she was beating Navratilova). But how on earth is Microsoft supposed to guarantee that someone isn't, in the dead of night, going to post these stupid photos again? Imagine someone with a ridiculous amount of time available and a desire to use up Microsoft's $38.7 billion in cash reserves. He could just keep creating new accounts and posting those pictures, and watching Microsoft get fined for each instance. Wouldn't that be fun for the feeble-minded?

Microsoft is right to...

Excuse me, I had to go lie down. That's an uncomfortable beginning to a sentence. Pause to reread.

Microsoft is right to say that freedom of speech online is at stake in the case. It's certainly true that moderators can make some parts of cyberspace habitable in a way that unmoderated spaces may not be. But that doesn't mean the whole of cyberspace should be subject to prior restraint. And in the US, prior restraint, of the press at least, is unconstitutional. In one of the few cases in which free speech in online media has been examined, the 1991 case Cubby Inc. vs. CompuServe, the US courts upheld the notion that a service provider could not be expected to know the contents of every posting, just as a bookstore can't be expected to know the contents of every book it sells.

A second case, in 1995, Stratton Oakmont vs. Prodigy, held the online service responsible for the contents of postings - because that service had a policy of pre-screening member postings. There's a brief contemporary summary from Mike Godwin, a specialist in cyber rights, here

The point on which the German courts disagreed is not quite over whether Microsoft can be expected to control what appears on MSN. Microsoft specifically says it does not claim ownership in material you post to the site. But it does claim the right to do what it wants with the material. The German court accordingly seems to have felt that this means Microsoft has some ownership of the material and therefore some responsibility for it. This is an interesting point, and one that may give services pause before they make too many intellectual property claims over users' material.

Meantime, as much as I hate to say it about a woman of such stellar achievement, with a new baby, a husband, a family, and many interests in sports, business, and leisure: Graf ought to get a life, or at least a sense of humour. Or get her mother, who used to be known for hanging out on AOL, to explain to her how the online world works. Taking the faked photos off MSN Deutschland isn't going to stop their reappearing elsewhere. At least they're faked: how much worse would it be if they were real? Graf, some years back, sued a photographer who took pictures of her lying on her front sunbathing in the nude in a private garden with a telephoto lens. That was a genuine invasion of privacy, and Graf was right there. If anyone actually believes that Graf ever posed in the nude for anything, I have some swamp land in cyberspace I'd like to sell you.

On the other hand, in Graf Microsoft has an adversary who can afford to pursue the case more or less ad infinitum, and is doing so in a country where she is like royalty. Even so: the company can afford even less to give her the undertaking she wants. Unless it's going to hire an army of moderators (economically unviable these days, though that's how CompuServe was built) or shut down its user forums (a shame), it's going to have to soldier on, oddly supporting the same free speech that allows the Net to call it the "Evil Empire." I quite like Slashdot's response: MSN should make up for it by posting doctored nude photos of Bill. As long as we don't have to look at them - please.

Thanks to rec.sport.tennis poster Amy Cottrell for bringing the story to my attention and being kind enough to look up links to background stories on the case.

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).