The Risks and Liabilities of Third Party Content on the Web
June 7, 2011
Recently, I was contacted by a company - we will call it Web Co. - that operates a website with a rating and review system that allows users to provide feedback on user generated content. Like most companies operating in the technology age, Web Co. wanted to know what liability risks it faced when negative reviews were posted on its site. With the increased use of websites, blogs and social media, every company operating a website, blog or otherwise hosting third party content on the Internet is concerned with liability from third party content posted on their site. The good news for Web Co. and all the other companies doing business in the technology age: Congress has virtually eliminated liability stemming from content posted by third parties.
With the 1996 enactment of the Communications Decency Act ("CDA") by Congress, liability for third-party content posted on the web has largely been eliminated. Section 230 of the CDA provides that "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 further states 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 section grants broad immunity to website owners, internet service providers, chat room hosts, bloggers, or other hosts of online forums from liability for content posted by a third party that is defamatory, offensive, violates individual rights of publicity or privacy, or otherwise would trigger a claim under State law. Good news for Web Co. - but, what if Web Co. wants to screen and edit the third party content?
It is totally up to Web Co. to decide how and whether to edit its users reviews. If Web Co. decides to edit content posted by a third party for accuracy, obscenity or civility, the edits must not substantially alter the meaning of the content such that it turns otherwise non-defamatory content into defamatory content. In doing so,Web Co. then becomes the author of the content and is no longer protected by Section 230 of the CDA. Otherwise, Web Co. can be as passive or as aggressive as it sees fit in performing editorial functions.
But, what if during screening of third party content Web Co. discovers what it believes to be copyrighted material? The CDA will not protect Web Co. against claims for copyright infringement based on something posted on its website by a third party. But, the Digital Millennium Copyright Act ("DMCA") will provide a safe harbor from copyright liability if Web Co. has complied with the the conditions of the DMCA.
Most importantly, Web Co. should have carefully drafted terms and conditions of use of its site. The terms and conditions of use should, at a minimum, include terms that protect Web Co. by making posters warrant 1) ownership of their posted content; 2) that their content is not defamatory; and, 3) that it does not violate the privacy, publicity, or other rights of the individual or company about whom they are posting. Further, the terms and conditions should require users to hold Web Co. harmless from claims and indemnify Web Co. from losses. Web Co.'s terms and conditions of use should also protect Web Co.'s content from use by third parties.