Best Practices for Online Service Providers

The Communications Decency Act and Accusations of Defamation

and Other Bad Behavior

Marcia Hofmann, Staff Attorney

EFF BootcampMay 11, 2009

So you’re hosting content from third

parties…o What kinds of legal problems arise when your web site hosts user–generated content?

So you’re hosting content from third

parties…o What kinds of legal problems arise when your web site hosts user–generated content?

o Can your company be held liable for unlawful material that others post on your site?

So you’re hosting content from third

parties…o What kinds of legal problems arise when your web site hosts user–generated content?

o Can your company be held liable for unlawful material that others post on your site?

o Do you have any obligation to police user–generated content?

So you’re hosting content from third

parties…o What kinds of legal problems arise when your web site hosts user–generated content?

o Can your company be held liable for unlawful material that others post on your site?

o Do you have any obligation to police user–generated content?

o Can you alter content that users post on your site? If so, how much?

Common user–generated content problem (1)

User posts nasty or inflammatory statements about another person, company or product on your site.

Yelp restaurant reviews, Amazon product reviews, comments in response to blog postings.

Risk: target of comments threatens to or actually sues the user and/or your company for defamation.

Common user–generated content problem (2)

User posts another person’s private information on your site.

Personally identifying information (name, address, SSN), pornographic or otherwise private photos or videos.

Risk: subject threatens to or actually sues the user and/or your company for invasion of privacy.

Common user–generated content problem (3)

User solicits in a discriminatory manner on your site.

Craigslist ad for a roommate that says people of a certain religion need not apply.

Risk: subject threatens to or actually sues the user and/or your company for discrimination, e.g., under the federal Fair Housing Act.

Communications Decency Act47 U.S.C. § 230

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Communications Decency Act47 U.S.C. § 230

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

ElementsSection 230 immunity requires that: othe defendant be a provider or user of an interactive computer service,

othe cause of action treat the defendant as a publisher or speaker of information, and

othe information be provided by another information content provider.

What’s a “provider or user of an interactive computer

service”?

Traditional ISPs Web site operators (including bloggers)

Listserv operators

Social networking services

Search engine operators

Users of online services

A broad variety of online publishers.

What kinds of claims can Section 230 protect

against?

Defamation Unfair competition

Invasion of privacy

Negligence

Breach of contract Federal civil rights claims

State criminal claims

Infliction of emotional distress

A wide range.

LimitationsSection 230 doesn't protect against:

o Federal criminal lawso State or federal electronic communications privacy laws

o Intellectual property claims (split of authority)oDoesn’t apply to federal claims, but immunizes against state claims. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007).

oDoesn’t apply to state or federal claims. Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D. N.H. 2008); Atlantic Recording Corp. v. Project Playlist, Inc., No. 08–3922, 2009 U.S. Dist. LEXIS 24912, at *35 (S.D.N.Y. March 25, 2009).

LimitationsYou can select, withdraw, or edit user content, but immunity may not apply if you significantly change or contribute to the meaning of the content.

Keep in mind Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008), in which county fair housing councils sued operator of roommate matching web site, alleging violations of housing discrimination laws.

Roommates.como No immunity for requiring users to answer allegedly unlawful questionnaire during registration process. Site found to be information content provider of questions.

o No immunity for requiring users to answer allegedly unlawful profile questions by selecting allegedly unlawful answers provided in a pull–down menu. Site found to develop content.

o No immunity for providing search and email notification systems to direct content according to discriminatory criteria.

o However, immunity for “additional comments” text box.

Policing content

Efforts to police content are irrelevant for purposes of Section 230 immunity.

However, if your company represents that it handles content a certain way, be sure to follow through. See Barnes v. Yahoo!, No. 05–00926(9th Cir. May 7, 2009).

Best practices

o It’s OK to edit user content, but be careful not to “develop” it.

o If someone threatens to sue your company for publishing content protected by Section 230, send a letter explaining that your company has immunity, which may help avoid suit. A company should work with an attorney to develop a form letter for such situations.

Best practices

o Even when you’re not legally required to police or remove disputed content, you should adopt internal policies for addressing complaints.

o Don’t promise to take down content if you don’t intend to do so. Follow any promises you make in your privacy policy or terms of service.

For more information

EFF’s Legal Guide For Bloggershttp://www.eff.org/issues/

bloggers/legal

Marcia Hofmann, Staff AttorneyElectronic Frontier Foundation

marcia@eff.orghttp://www.eff.org