Online Forums, Chat Rooms and Hosted Content: Risks and Liabilities
Just when you thought it was safe to put your foot into the Internet waters, you start reading troublesome articles about potential risks and liabilities. What is a savvy business owner to do? Certainly, there are risks associated with online content, but the good news is that Congress has largely eliminated liabilities for third-party content posted on a website. It did this in 1996 in enacting the Communication Decency Act ("CDA"). Section 230 of the CDA, which is famous in Internet law circles, is short and sweet. It reads as follows:
"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."
Section 230 goes on to say that "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." This means that there is no liability for content posted online by a third party that is defamatory, offensive, violates individual rights of publicity or privacy or otherwise would trigger a claim under State law.
Note that this provision is limited to protection against state law claims. The principal federal law risk would be a claim for copyright infringement based on something posted on your website by a third party. Two years after the CDA was adopted, Congress plugged this hole by passing the Digital Millennium Copyright Act ("DMCA"). It provides a safe harbor from copyright liability if certain conditions are met. For a discussion of the DMCA, click here.
Interactive Computer Service
Congress defined "interactive computer service" very broadly, and courts have consistently defined the term expansively. It is clear that it includes Internet service providers, like America Online, and hosts of online forums, chat rooms, and other websites where third-party content can be posted, provided the content is posted by the third party rather than the host.
Active Versus Passive Hosting
Congress passed the CDA specifically to overrule a line of cases that had held website owners liable for content posted by third parties where the website owner screened, edited, or otherwise actively monitored content posted on the site. Several well-known cases held that this sort of activity made the host a "publisher" of the content and therefore liable under traditional principles of defamation law or common law rules covering other torts. Congress overruled these cases and it is now clear that hosts are free to monitor content, and to take down problematic postings without risking any liabilities based upon such active involvement. In Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998), the court summarized the situation as follows:
"Congress has provided immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material even where the self-policing is unsuccessful or not even attempted."
The same is true at the other end of the continuum, where the host has no involvement and declines to remove potentially offensive content. In general, there is no such liability as long as the host takes advantage of the safe harbor provided by the CDA.
Website Terms and Conditions
Although the CDA protects against most liabilities for third-party content posted on a website, it is still a good idea to have website terms and conditions that protect the owner of the site by making posters warrant their ownership of posted content, that it is not defamatory and does not violate the privacy, publicity, or other rights of the individual or company and requires them to hold the website owner harmless from claims and indemnifying it from losses. The terms and conditions should also protect the owner's own content from use by third parties, particularly where not protected by copyright laws. For a discussion of this topic, see Website Terms and Conditions Held Applicable to Content Copied by Robot or Spider.
There's nothing in the CDA that prevents suing the third party who created and posted the content. For discussion of the difficulties in asserting a defamation or other claim against anonymous posters, see Delaware Supreme Court Holds that Obtaining The Identity by a Subpoena of an Anonymous Internet poster Requires Actual Evidence of Defamation Not Just "Good Faith" Standard Applied by Some Other Courts. For discussion of a potpourri of legal issues associated with running a business on the Internet, see E-Commerce Developments: Across E-Commerce Law on Horseback.