website_development_programAs a blogger myself, unknown legal risks involved in providing content on the internet are always a concern. The growth in internet marketing, social networking, and other uses of the internet for business and collaboration has provoked an new need for legal protection from unwanted or unwise uses of these mediums. For instance, a blogger may control his or her own blog content, but what about the unsolicited comments? Can harrassment, derogatory language, or other unwanted uses of the comments section subject the blog or website operator to legal liability? Can an otherwise neutral search engine available within a website subject the website owner to liability if search results appear discriminatory to the user? Might a chat room operator be liable for third party content posted in the chat room? These and other questions are just some that I have encountered in my practice. While every case is usually fact-intensive, there are legal “safe harbors” available to internet “service providers” that immunize the “service provider” or website operator from liability for third-party conduct or content.

Section 230 of the Communications Decency Act of 1996 (”CDA”) affords immunity from liability to providers of “interactive computer services” for illegal content provided by third parties, if the service provider merely provides neutral tools for communicating information and does not materially contribute to the allegedly illegal content. (See Fair Housing Council of San Fernando Valley v., LLC, 521 F.3d 1157 (9th Cir. 2008)). A “provider of an interactive computer service” may be any website operator, as the 9th Circuit has stated that “the most common interactive computer services are websites.”  (See Fair Housing Council of San Fernando Valley, at 1162, fn.6). 

“This grant of immunity applies only if the interactive computer service provider is not also an “information content provider,” which is defined as someone who is “responsible, in whole or in part, for the creation or development of” the offending content. A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is “responsible, in whole or in part” for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.”  (See Fair Housing Council of San Fernando Valley, at 1162 - 63).

The immunity is not explicitly stated, but instead the CDA states that the website operator (blogger) is not the “publisher” or “speaker” of any third-party content or conduct on the site.  Specifically, pursuant to Section 230, “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (47 U.S.C. § 230(c)(1)).  Furthermore, a website operator only enjoys this immunity as long as it does not materially contribute to the illegal content, such as altering the content to create a defamatory impression.  However, making small edits to content provided by third parties, such as simply correcting spelling, removing obscenity, or trimming the length of a comment, will not forfeit immunity under the CDA. (See Fair Housing Council of San Fernando Valley, at 1169).

I have received concerns from website owners or bloggers that they might be violating First Amendment rights or become liable for discrimination if they approve certain comments or users, but disallow or ban others.  To this end, § 230(c)(2) provides that “[n]o provider . . . of an interactive computer service shall be held liable on account of- (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  Therefore, any harrassing or other unwanted material may be removed or blocked at the website operator’s choosing. 

Again, every case is probably fact-intensive and different measures will fit different circumstances, but these are good safe harbor provisions to know generally for any blogger or other interactive website operator.

This entry was posted on Wednesday, November 4th, 2009 at 2:40 pm.
Categories: Copyright Caucus, Trademark Trends ~ by Ian McClure.

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