Legal Tides Changing for User-Generated Content - What Do These Rulings Mean?
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Let’s take a look at the Roommates.com ruling first. The judges agreed that the request for users to write an open-ended summary of what they’re looking for in a roommate was “neutral” and not discriminatory. So does having all those drop-downs with potentially discriminatory questions cause the problem? Will web sites that routinely use drop-downs to collect information from their users (and make that information searchable to other users) have to worry more about liability issues?
The three dissenting judges in the Roommates.com ruling think so. Writing for the dissenting minority, Judge M. Margaret McKeown explained that “The majority’s unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned…Instead of the ‘robust’ immunity envisioned by Congress, interactive service providers are left scratching their heads and wondering where immunity ends and liability begins.”
If that sounds like millions of sites face some confusing times, let’s take another look at the problems with the FriendFinder ruling. We may have no good case law on the right of publicity now…but we could end up with some very interesting case law if the ruling stands. Currently, when a post on a forum or other user-driven site tarnishes someone’s reputation, the injured party’s main recourse is a defamation lawsuit. Unless it’s very narrowly interpreted, the FriendFinder ruling could open the door to others using the right of publicity under the “intellectual property” umbrella to sneak in what should be a defamation claim. That could leave such sites vulnerable in ways they simply didn’t expect.
Section 230 has served site owners and users of the Internet well for about a decade. For good or ill – more good than ill, in the opinion of many – it has helped the Internet grow into what it is today. The freedom enabled by Section 230 has allowed user-driven sites to function without fear of being shut down due to user comments, thus giving more users platforms for the expression of their ideas, whether in text, still images or video. Any restriction on the protection offered by Section 230 should be approached with extreme caution, lest these lively communities be stifled or shut down by their owners out of fear of expensive lawsuits.
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