Eric Goldman at the Technology & Marketing Law Blog has identified three examples where websites will always remain liable for first party content.

The first is where the website operator posts their own content.  In these situations they are held liable because they are not simply a computer service provider but rather a content provider.  Just as a user can be responsible for the user generated content it provides, the website operator can be responsible and liable for that which it provides on a website.

The second example pertains to marketing representations.  In such instances where the website operator makes marketing representations, they may be liable under laws related to contract or false advertising.  These particular situations require the most in-depth analysis and legal knowledge.

Finally, the recent case of Barnes v. Yahoo held that a website may be liable under promissory estoppel if it promises, and therefore assumes an obligation, to remove third party content and fails to do so.  The question becomes how far reaching this decision will be.  For example, will a website operator be held liable when it promises to alter the user generated content or provide clarification of its own pertaining to that content?  Issues such as this are likely to arise, and a review of the specific facts pertaining to that user generated content or website operator actions is critical.

Ultimately, internet service providers that allow for user generated content must understand the limits of Section 230 Immunity. Contact an experienced internet lawyer today to understand the application of the Communication Decency Act to your particular matter.

Simply put, courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant’s status or conduct as a publisher or speaker.  If it does, the first exclusion to section 230 precludes liability.  Courts have defined the publisher to mean someone who reviews material submitted for publication, even edits it to a certain extent, and then decides whether to publish it.   And a speaker actually submits the material that will be published.   Either way, the action requires the court to treat the defendant as the publisher or speaker of content provided by another, unity under section 230 likely applies.

Determining whether the website operator is a publisher or speaker will likely determine the outcome of a case.  Since the Communication Decency Act often is implicated in cases dealing with defamation, fraud, obscenity, assault, harassment, and other related torts, understanding whether the website operator merely provided a forum for user-generated content to  be published or somehow encouraged or participated in illegal behavior as a speaker should help determine the outcome.  While it will likely still be referred to as CDA immunity, the analysis the courts are performing, and one that attorneys should be aware of, tends to focus on the publisher or speaker determination.

Please contact an internet lawyer today to discuss.

In order to avail oneself of the immunity, it is important to understand how to assert it. In particular, internet lawyers should know that claiming CDA immunity should be done as an affirmative defense. While it may not serve as immunity against all causes of action, it is one that must be asserted affirmatively in order to use it.

On the other hand, failure to assert it as an affirmative defense may lead a court of law to hold that the immunity has been waived. Therefore, procedurally failing to assert it as an affirmative defense may lead to losing such immunity. In addition, as noted above, the role the website operator takes with regard to user-generated content can dictate the availability of the defense. In particular, providing content and other information that may encourage participation in the wrongful act alleged may lead to no immunity.

Ultimately, determining whether or not CDA immunity applies under Section 230 is a fact intensive matter. Internet lawyers experienced in handling issues faced by internet service providers, dealing with user-generated content, and media law matters in general should be consulted. Contact Traverse Legal’s Attorneys today for more information.

• User-generated content ownership
• User-generated content right of use
• What kind of user-generated content will be allowed, in particular noting only lawful content
• How unlawful user-generated content will be handled
• Whether the website operator can edit or otherwise have a role in the user-generated content.

Not only is it important to specifically address each of the above, but it is also important that the website operator understands what it may and may not do in order to ensure that it is deemed an interactive computer service provider rather than a content provider. This distinction is particularly important when considering immunity under the Communications Decency Act(CDA). Thus, the website operator’s actual role and involvement should match that which is delineated in its website agreements. For example, if it claims that it has no duty to review site content such as user-generated content, then it should not undertake an effort to do so. Similarly, should the website operator comment on user-generated content, it may be crossing the line into being deemed a content provider and thus waiving its immunity under the CDA.

Ultimately, these considerations need to be addressed when developing the website, drafting the website agreements, and actually providing the service. An experienced internet lawyer that understands law and latest decisions interpreting such laws, including those under the Communications Decency Act, should be consulted where possible.

1. Whether the defendant is a provider of an interactive computer service;
2. If the postings at issue are information provided by another information content provider; and
3. Whether plaintiff’s claims seek to treat the defendant as a publisher or speaker of the third party content.

Ultimately, the most important inquiry for determining whether or not immunity applies is the role of the defendant as it pertains to the statements, or the content, at issue.  It is more often than not beyond dispute that the defendant is in fact an interactive computer service.  However, the question becomes whether user-generated content can be attributed to the website operator so as to make it responsible, in whole or n part, for the creation or development  of information.  If the website operator is itself deemed an information content provider, then immunity would not apply.  Therefore, an analysis of the website operator’s involvement with the user-generated content is a prerequisite to determining whether or not liability may exist.

If the defendant is in fact deemed an information content provider, it will no longer be able to claim immunity under Section 230.  Instead, in those cases where a defendant forces its users to provide discriminatory information as a condition to access, rather than simply providing neutral tools to enable the user to perform an unlawful or elicit act through user generated content or otherwise, liability may result.

It is worth noting that Section 230 does not necessarily provide immunity as it relates to intellectual property law.  For example, there is no immunity for contributory liability for trademark infringement, right of publicity claims, and other related claims.  Ultimately, should an entity qualify as an information content provider with respect to the information at issue, Section 230 immunity will not apply.  Thus, an understanding of what an ISP, web host, or other service provider must do in order to shield itself of liability in connection with user generated content is critical.

Since a website operator can be both a mere service provider and content provider, it may be subject to liability for some of the content it displays (e.g. the Roommates.com case) but not other content (e.g. user generated content).  If you are a website operator and allow user generated content, you should understand the limits of the CDA and the immunity it provides.  For example, Section 230 does not offer immunity for federal criminal liability and intellectual property law.  The CDA may not provide immunity for specific torts, depending upon the facts.

Not all online entities, including user generated content websites, may qualify for the immunity if their activity amounts to that of an information content provider, as defined by Section 230.  Therefore, you should consult with an experienced internet lawyer today to discuss how the CDA may apply to your specific situation.