Web Agreements Must Address User-Generated Content in Order to Receive Section 230 Immunity

June 8th, 2009

So many websites today are driven by user-generated content. While all websites should contain website agreements, such as terms of use, privacy policy, and a copyright policy, those websites that allow for user-generated content should absolutely ensure that they have such agreements.  For sites with UGC, web site owners need to ensure that they are protected by Section 230 of the Communications Decency Act if possible. In particular, the following should be considered:

  • 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.