YourABA November 2011 Masthead

Five ways website owners can lose protection from posting third-party content

For 15 years, Section 230 of the Communications Decency Act has provided website owners with protection from a broad range of claims related to content posted to their sites by third parties. In their ABA Communications Lawyer article, “Protection Under CDA § 230 and Responsibility for ‘Development’ of Third-Party Content,” authors Edward Fenno and Christina Humphries of Fenno Law Firm LLC say that “hosting, reviewing, editing and even soliciting [third-party] content all typically are protected activities.”  However, the authors also point out that case law indicates that CDA protection may be lost under certain circumstances.

Fenno and Humphries share five situations where website owners may be liable for content contributed by third parties:

The question of whether an employment relationship is formed with a third-party content contributor complicates whether CDA immunity is granted.

 

Failure to remove after notice or promise to remove – A website owner cannot be held liable in tort for failing to remove defamatory or other harmful content posted by third parties—even after receiving notice of the content’s objectionable nature, say Fenno and Humphries. However, when the website promises to remove the material, “the website may be susceptible to claims under other legal theories such as promissory estoppel.”

In Barnes v. Yahoo!, the plaintiff received a telephone promise from Yahoo!’s director of communications that he would remove a false profile of the plaintiff created by her ex-boyfriend, per the company’s takedown policy. Since the company did not remove the profile until the lawsuit was filed, “the Ninth Circuit held that plaintiff’s claim for promissory estoppel, based on Yahoo!’s agreement to remove the content, was not barred by Section 230.”

Posting is made pursuant to an employment relationship with the website – “When the posting is made by an authorized agent of the website or an employee within the scope of employment, CDA protection is likely to be lost,” say Fenno and Humphries, explaining that the website owner would be responsible for the actions of its agent or employee under agency and vicarious liability principles.

The question of whether an employment relationship is formed with a third-party content contributor complicates whether CDA immunity is granted. In Blumenthal v. Drudge, the court found that Matt Drudge was protected by Section 230, despite being under contract and paid by AOL for his regular posts. Fenno and Humphries speculate that the court “believed Drudge was not an agent of AOL because AOL was not an exclusive publisher of the content.”

Website owner engages in unlawful conduct apart from publishing the content – “The issue of CDA protection becomes less clear as web publishers interact with users by soliciting responses,” say Fenno and Humphries, providing the example of online questionnaires. Website owners are generally immune when using such forms to solicit responses—as long as the forms ask neutral questions that are not themselves unlawful and do not require unlawful responses.

In Fair Housing Council of San Fernando Valley v. Roommates.com, Roommates.com required its users to input sex, family status and sexual orientation, and displayed the information on users’ profile pages—a violation of the Fair Housing Act. According to Fenno and Humphries, the Ninth Circuit ruled that the website was not protected by the CDA because it required subscribers to provide the unlawful information as a condition of service. By doing so, it crossed the line from the “transmitter of information” to “developer of information.”

The website owner inserts the offensive content – “Altering or editing third-party content is considered ‘creation or development’ of the content, and can lead to liability if the revisions ‘materially contribute[e] to [the] alleged unlawfulness’ of the content,” caution Fenno and Humphries. “If on the other hand, the statement is defamatory or harmful prior to editing, and the editing does not add to the harmful nature of the statement, then the website is protected by the CDA.”

In MCW Inc. v. BadBusinessBureau.com, despite the fact that the defendants only created the titles and editorial messages that surrounded third-party content, they lost CDA protection. The judge considered the defendants content producers because they created the disparaging headlines on which the plaintiff’s claims were made.

The website owner actively solicits the offensive portion of the third-party submission – “Websites may lose CDA protection if they actively solicit or encourage submission of what is offensive about the content,” warn Fenno and Humphries, pointing out cases of the Tenth Circuit as well as several lower courts.

In Federal Trade Commission v. Accusearch, Inc., Accusearch was not protected by the CDA for its business of providing confidential telephone numbers to users over the Internet. While Accusearch argued that because it used third-party researchers to obtain the information, it could not be considered a publisher of the unlawful content under the CDA. The judge disagreed, saying that “the CDA protects against content, not conduct; and because Accusearch’s conduct in acquiring the information was itself an unfair practice, the CDA would not apply.” 

ABA Communications Lawyer is a publication of the Forum on Communications Law.

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