This is a plan for a pilot project for resolving disputes that arise on worldwide computer networks about online messages, postings, and files through a new, rapid-response, online arbitration project. The name of the project is the "Virtual Magistrate^SM arbitration program". The Virtual Magistrate^SM arbitration program is experimental and subject to change as it proceeds.

This plan was developed by a working group at a meeting sponsored by the National Center for Automated Information Research (NCAIR) and the Cyberspace Law Institute (CLI) on October 25, 1995.

Participants in the Working Group Discussions:

• Timothy C. Leixner -- NCAIR
• Ann Sloane -- NCAIR
• Ellen Kirsh -- America Online
• William Marmon -- MCI
• David R. Johnson -- CLI/Lexis Counsel Connect
• David Post -- CLI/Georgetown Law School
• Robert Gellman -- CLI Fellow
• J. Beckwith Burr -- CLI Fellow/Federal Trade Commission
• George H. Friedman -- American Arbitration Association

 

Basic Function of the Virtual Magistrate^SM Project

The Virtual Magistrate^SM arbitration program will offer arbitration for rapid, interim resolution of disputes involving (1) users of online systems, (2) those who claim to be harmed by wrongful messages, postings, or files and (3) system operators (to the extent that complaints or demands for remedies are directed at system operators). Arbitration services will be available for computer networks anywhere in the world as long as relevant parties agree to participate.

Pilot Project Goals

• - Establish the feasibility of using online dispute resolution for disputes that originate online.
• - Provide system operators with informed and neutral judgments on appropriate responses to complaints about allegedly wrongful postings.
• - Provide users and others with a rapid, low-cost, and readily accessible remedy for complaints about online postings.
• - Lay the groundwork for a self-sustaining, online dispute resolution system as a feature of contracts between system operators and users and content suppliers (and others concerned about wrongful postings).
• - Help to define the reasonable duties of a system operator confronted with a complaint.
• - Explore the possibility of using the Virtual Magistrate^SM arbitration program to resolve other disputes related to computer networks.
• - Develop a formal governing structure for an ongoing Virtual MagistrateSM arbitration program.

 

Appointment of Arbitrators

A single arbitrator will be selected randomly from a pool of qualified and trained arbitrators. Some cases may be referred to a panel of three arbitrators. Initially, the pool of arbitrators will consist of those selected jointly by the American Arbitration Association and a subcommittee of CLI Fellows. Prerequisites are familiarity with the law and online systems. The pool is not limited to lawyers, although some cases may be assigned to lawyers or to others with specialized knowledge or experience.

Panel members will be asked to respond immediately (by email and other means) to a dispute assigned to them. Panel members are required to avoid direct conflicts of interest.

The pool of arbitrators, and the identity of the magistrate responsible for each proceeding, will be disclosed publicly.

What Will the Arbitrators Decide?

The Virtual Magistrate^SM arbitration program will accept complaints about messages, postings, and files allegedly involving copyright or trademark infringement, misappropriation of trade secrets, defamation, fraud, deceptive trade practices, inappropriate (obscene, lewd, or otherwise violative of system rules) materials, invasion of privacy, and other wrongful content.

The arbitrator will decide whether it would be reasonable for a system operator to delete, mask, or otherwise restrict access to a challenged message, file, or posting. Other cases may call for decisions about the disclosure of the identity of an individual to a person other than the government. In extreme cases, the arbitrator may rule on whether it is appropriate for a system operator to deny a person access to an online system.

The Virtual Magistrate^SM arbitration program will not decide questions about billing or financial obligations as between users and system operators.

The Virtual Magistrate^SM arbitration program may broaden the scope of its rulings if all relevant parties identify themselves and agree to be bound by an arbitration decision.

How Will Decisions be Reached?

The filing of complaints and communications between the parties and the Virtual Magistrate^SM arbitration program will normally take place by e-mail. The Virtual Magistrate^SM arbitration program will make reasonable efforts to provide notice to all parties and persons in interest. Each Arbitrator will attempt to reach a decision within 72 hours (three business days) after acceptance of a complaint.

The 72 hour time period does not start until all necessary parties have agreed to participate in the process. There can be a significant delay before other necessary parties have been contacted and have agreed to participate. In some cases, the process of contacting other parties and informing them about the complaint and the Virtual Magistrate^SM arbitration program has actually resulted in settlement of a dispute without the need for a formal decision.

Delays in communications and other factors may make it impossible to meet the 72 hour target for a decision in all cases. When appropriate, arbitrators may issue interim decisions more quickly. At the request of the parties or for good cause, the decision schedule may be extended. The Arbitrators will normally issue written opinions.

Standard for Decisions

Decisions by the Virtual Magistrate^SM arbitration program will determine whether, in light of available information, network etiquette, applicable contracts, and appropriate substantive laws, a system operator would be acting reasonably if it withheld messages, files, or postings from public access pending resolution of claims between the parties in interest in any applicable legal jurisdiction.

In making a decision, the Virtual Magistrate^SM arbitration program will not automatically apply the law of any specific legal jurisdiction. It will consider the circumstances of each complaint, the views of the parties about applicable legal principles and remedies, and the likely outcome in any ultimate litigation or dispute resolution.

Effect of Decisions

Any system operator may (1) require users (by means of the standard user contract) to refer complaints to the Virtual Magistrate^SM arbitration program; (2) require users to agree that any complaints about their messages, files, or postings will be referred to the Virtual Magistrate^SM arbitration program and may be handled in accordance with its decisions; (3) promise as part of its contractual undertakings to take actions consistent with the decision of a Arbitrators in particular cases; or (4) agree with a particular user to refer a particular matter to the Virtual Magistrate^SM arbitration program.

The Virtual Magistrate^SM arbitrator expects system operators to support and enforce decisions as with other private arbitration decisions. When the Virtual Magistrate^SM arbitration program decides that a message, file, or posting should be deleted, masked, or otherwise restricted pending further determination of the rights of all concerned, a system operator will normally be directed to comply.

The Virtual Magistrate^SM arbitration program will seek to persuade third parties (such as copyright owners whose works may have been infringed by network postings) to agree, in consideration of access to the dispute resolution process, to be bound by the decisions. This means that they will be asked to agree that submission of a complaint to the Virtual Magistrate^SM arbitration program, and handling of the matter in compliance with the resulting decision, fulfills any duty the system operator may otherwise have had to respond to the complaint in the interim before more conclusive determination of the respective rights of the sender of a message and the complaining parties. The goal is to have all parties to a proceeding agree to comply with the decision pending additional legal actions.

Decisions by the Virtual Magistrate^SM arbitration program may be reconsidered but will not be subject to appeal. All system operators, users of online systems, and others participating in the Virtual Magistrate^SM's proceedings agree by virtue of their participation to waive any claim against the Virtual Magistrate^SM arbitration program and/or its participants for any liability as a result of the proceedings. Some states and some systems provide immunity to neutral arbitrators. The AAA will defend and indemnify Virtual Magistrate^SM arbitration program participants in the event of litigation over their activities on behalf of the Virtual Magistrate^SM arbitration program.

GOVERNANCE AND FUNDING

The Cyberspace Law Institute is the convening body for the Virtual Magistrate^SM arbitration program. The National Center for Automated Information Research (NCAIR) is providing initial funding for the pilot project and will administer the disbursement of the funds. NCAIR and the Working Group will be responsible for administration of the project. Eventually, operations of the Virtual Magistrate^SM arbitration program may be funded through assessments against system operators or from other external funding sources.

The American Arbitration Association will act as the administrative arm of the Virtual Magistrate^SM arbitration program, charged with establishing systems to assure appropriate receipt and routing of complaints. The Villanova Center for Law and Information Policy will provide online facilities that will allow public access to the work of the Virtual Magistrate^SM arbitration program.

Robert Gellman will serve as the Executive Director of the Virtual Magistrate^SM arbitration program.

Training and Payment of Virtual Magistrate^SM Panel Members

A candidate for arbitration must be knowledgeable about the law and online systems. Arbitrators must comply with a code of conduct that requires neutrality and provide for recusal from cases in which they may be perceived to have an interest. The AAA and the Virtual Magistrate^SM arbitration program will provide training and orientation regarding the applicable procedures and protocol for arbitration on the Net. Arbitrators will be paid $250 per dispute.

Publication and Significance of Decisions

Decisions of the Virtual Magistrate^SM arbitration program will be made public, provided however that the panel may rule that specified matters be kept under seal or that publication of specific matters be delayed for good cause shown. The Virtual Magistrate^SM arbitration program will keep filings in a case confidential until the decision is rendered. Complaints and other submissions relating to a proceeding will then made public, unless the Arbitrator in the case rules that the filings may be sealed for good cause. Virtual Magistrate^SM arbitration program panel may conduct private deliberations.

Published decisions and proceedings will be made available through a World Wide Web site maintained by the Center for Law and Information Policy at Villanova Law School.

Decisions by one Arbitrator will necessarily not be treated binding precedent for other cases. Eventually, a body of cyberlaw may develop from the decisions and form the basis for resolving additional disputes. The parties to a proceeding will be bound by the decision and will not be permitted to relitigate identical matters through the Virtual Magistrate^SM arbitration program.

Miscellaneous

The Virtual Magistrate^SM arbitration program will direct requests for mediation services to other appropriate sources of such assistance.

The Virtual Magistrate^SM arbitration program will report publicly on its experiences and will attempt to establish a protocol for online dispute resolution that can be emulated by others. The Virtual Magistrate^SM arbitration program may also seek to educate the public about network policies, practices, and conduct.

An evaluation of the pilot project is an essential element of the Virtual Magistrate^SM arbitration program. NCAIR and the Cyberspace Law Institute may convene a conference or workshop in Washington D.C., in late May, 1996 to evaluate the Project to that date and to accelerate the process of delivering the pilot project to its permanently funded administrative home. More information about this activity will be posted at a later date.

Electronic Addresses for the Virtual Magistrate^SM arbitration Program