Liability evolving for user-generated content

One of the greatest advances in our use of Web-based technology in the last decade – commonly referred to as “Web 2.0”, and now Web 3.0 around the corner – has been the outburst of online communities, collaboration among users and sharing of information and content. Today, household names like Craigslist help you find everything from Red Sox tickets and used lawnmowers to apartments and roommates. Facebook helps reconnect you with your past and Roommates.com and Match.com help find your future mates and partners. Thanks to Tributes.com – Monster.com founder Jeff Taylor’s most recent venture – even obituaries have become “social.”
Law and technology never mix well, however, particularly when it comes to creative content. With privacy and copyright issues on the one hand, and the advancement of human thought through free speech on the other, striking the right balance is a legislative and judicial challenge. Since the passing of the federal Communication Decency Act of 1996 (CDA), social-networking Web sites, on-line dating services, financial message boards and other user-generated-content Web sites have enjoyed immunity from various federal and state law claims arising from user content. Historically, even if the posted material was incorrect or defamatory, if the Web site did not create or heavily edit the content before posting, or did not refuse to remove it after receiving complaints, the site was usually immune from liability. After all, many of these sites, despite their online popularity, are small, bootstrapped businesses and it would be unfair to impose on them the same burdens of editorial review and liability of a true “publisher.”
Well, the tide may be turning. In April, the federal Ninth Circuit Court of Appeals held Roommates.com not entirely immune under the CDA. Roommates.com operates a roommate-matching service. Before you can search listings or post housing ads, you must create a profile and provide sensitive information such as your contact information, gender, sexual orientation and whether you would bring children into the household; you also have to describe your preferences in roommates with respect to these issues.
An about-face from past decisions favoring Web site operators, the Ninth Circuit held that Roommates.com was not immune under the CDA from liability for several of its practices. The court’s message to the Web site operators: “If you don’t encourage illegal content, or design your Web site to require users to input illegal content, you will be immune.”
In comparison, the Seventh Circuit came to a different conclusion in a FHA case involving Craigslist. There the court held that the CDA immunized Craigslist from the FHA claims premised on Craigslist’s publication of offensive ads authored by third parties that were not screened by the site.
Another troubling decision came recently from the New Hampshire federal court, finding that a state law privacy claim involving one’s right of publicity is not subject to CDA immunity. This case involves AdultFriendfinder.com, an adult-themed dating and matching Web site. The plaintiff claimed that an anonymous party created and posted a profile page on the site that included the plaintiff’s biographical data (DOB, height, build, and hair and eye color), a nude photograph purportedly of the plaintiff and a statement that identified her as “a recently separated 40-year old woman in the Upper Valley region of New Hampshire who was seeking men or women for erotic chat / e-mail / phone fantasies and discreet relationship.”
While dismissing the other claims, the court declined to find CDA immunity for the publicity claim, even though the content at issue was created entirely by a third party. In a detailed opinion comparing various other CDA decisions, the court classified the publicity claim – a right that generally permits a person to control how his or her name, image and likeness is used commercially – as a violation of intellectual property rights.
While the outcome of these cases was heavily fact-specific, a number of recommended practices can be gleaned.
• Questionnaire and user-submission forms should be prepared with great care. In general, be selective with the information that you have requested from your users and consider whether your questions could unfairly discriminate or lead to an invasion of one’s right to privacy.
• Make sure that your Terms and Conditions and Privacy Policy are easy for users to find and understand. Use plain English (not boilerplate legalese) and make them accessible from many parts of your site. Require your users to read these provisions before using the site and to acknowledge that they will abide by them.
• Review your site’s Terms and Conditions and Privacy Policy regularly to ensure they are up to date with the law and your site’s actual profile. Among other things, be very clear that illegal content is prohibited and cannot be posted on the website, and will be taken down when the site has been notified of a problem.
• Establish internal procedures for dealing with user-content complaints and apply them consistently. Provide users with access to the site administrators to post complaints and take-down notices, and when faced with a complaint, act promptly to investigate and remove false or defamatory posts. For complaints made with respect to a false profile, it may be prudent to expunge the entire profile from the site, as opposed to deleting specific entries. •
Amy B. Spagnole and Dimitry S. Herman are partners at the law firm Hinckley Allen Snyder LLP, which has offices in Providence, Boston and Concord, N.H.