Liability for Visitor Content Posted to Blogs
Are You Liable For Visitors' Posts To Your Website?
Many sites these days are interactive -- they permit site visitors
to post to the site.
Forums and blogs would be at the top of most of our lists for types
of interactive sites. However, different kinds of sites are also
permitting owners to post, such as classified ad sites.
What happens if a visitor posts an illegal statement on your blog,
forum, or in a classified ad on your site? Are you liable?
The Communications Decency Act
Congress came to the rescue of "interactive computer services"
in 1996 with subsection (c) of the Communications Decency Act which
provides: "No provider or user of any interactive computer
service shall be treated as the publisher or speaker of any information
provided by another information content provider." 47 USCA
Sec. 230(c) (referred to below as "Section 230").
Section 230 was intended to overrule prior case law which routinely
held that online providers were liable as publishers and speakers
for third party content. Now, under Section 230, interactive websites
have a shield against liability for visitor's posts. However, two
recent cases show that the Section 230 shield from liability has
The Craigslist.com Case Upholds Section 230 As Liability Shield
In November 2006, a US District Court held that Craigslist.com,
an online classified ad site, was not liable for discriminatory
practices of its users.
The suit had been brought by the Chicago Lawyers' Committee for
Civil Rights Under Law which alleged that Craigslist.com had a series
of rental housing ads containing discriminatory statements. Examples
of discriminatory statements by users included "no minorities"
and "no children".
In March 2008, the 7th Circuit Court of Appeals upheld the District
Court's decision. Essentially, the 7th Circuit held that Craigslist.com
was just a "messenger" and is shielded from liability
by Section 230 for the discriminatory ads posted by its users.
The Roommates.com Case Goes The Other Way
In April 2008, the 9th Circuit reversed a District Court's ruling
and held that Section 230 did not shield Roommates.com from certain
portions of the site that gave users limited choices for expressing
their beliefs. On the other hand portions of the site that allowed
free-form text were held to be shielded by Section 230. Similar
to the Craigslist.com case, the users' statements were alleged to
be discriminatory and in violation of fair housing statutes.
The key distinguishing factor noted by the 7th Circuit was the
structure imposed by Roommates.com. For example:
- Questions were posed to users asking for racial preferences,
- Pull-down menus for user's profile answers required answers
before the user could proceed
The question arises: does the Roommates.com decision signal a
major shift away from the protections of Section 230? The decision
indicated that a major shift was not intended. The opinion indicated
that the ruling should only apply narrowly to a limited number of
sites: "The message is clear: If you don't encourage illegal
content, or design your website to require users to input illegal
content, you will be immune." In addition, the opinion contained
clear language that a major shift away from Section 230 was not
"Websites are complicated enterprises, and there will always
be close cases where a clever lawyer could argue that something
the website operator did encouraged the illegality. Such close cases,
we believe, must be resolved in favor of immunity, lest we cut the
heart out of section 230 by forcing websites to face death by ten
thousand duck-bites, fighting off claims that they promoted or encouraged
-- or at least tacitly assented to -- the illegality of third parties."
So, the lesson is clear: beware of placing structure on user's
posts in classified ad sites. There is safety in free-form text.
Related Article: Your
Liability For Copyright Posted by Visitors
Copyright © 2008 Chip Cooper
This article is provided for educational and informative purposes
only. This information does not constitute legal advice, and should
not be construed as such.
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