Legal Tides Changing for User-Generated Content

Many civil libertarians will tell you that there were certain problems with the 1996 Telecommunications Act, but there’s one part of it that every ISP and owner of a UGC-based web site loves. Now two rulings threaten to weaken that part of the Act. Should you be concerned?

I’m referring to Section 230 of what has been commonly called the Communications Decency Act. Wikipedia discusses it in layman’s terms, more or less. The Electronic Frontier Foundation has an excellent page on Section 230 with an explanation of how it applies to bloggers.

The actual text of Section 230 that is relevant to providers of user-driven sites such as Myspace and YouTube says 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.” In short, if I upload a nasty video to YouTube that makes fun of Disney, the entertainment company can’t sue YouTube; they’re supposed to sue me. (If I’m violating copyright, there’s also the little matter of DMCA takedown notices, but that’s another law and an entirely different can of worms).

Section 230 has helped the Internet become the wonderfully raucous and contentious place that it is today. Where would we be without all the online forums, blogs, dating sites, and photo- and video-sharing sites with all their comments? Every single one of those boasts user-generated content, and thanks to Section 230, the owners of these kinds of sites don’t have to worry about civil lawsuits for a wide range of potential offenses, including defamation. Sure, if the owner of one of these sites posts actionable content, he or she can still be sued; but if I own a UGC site and Mary Sue posts something that merits a lawsuit, those lawyers won’t be aimed at me.

It seems that good things never last, however, and a pair of rulings by federal district judges just might end the party. Both are being appealed, but as Ann Broache, writing for CNet, notes, “If those decisions are upheld on appeal, and if more judges follow suit, web site operators and Internet service providers may find themselves compelled to police what their users post – or face the unsettling prospect of being held liable for the contents.”

The first of these worrisome suits was brought by an anonymous woman against the FriendFinder Network. FriendFinder operates a multitude of dating sites. You may have heard of AdultFriendFinder; the company owns a number of less explicit dating sites as well. According to the plaintiff, FriendFinder allowed a number of “bogus” profiles to be posted to its site that could be “reasonably identified” as portraying herself. They weren’t her, of course, and they were published without her knowledge or consent. Furthermore, they were sexually explicit.

The text of the judge’s ruling on the case can be found here. The plaintiff’s complaint comprised eight parts, or counts:

  • Invasion of property/intellectual property rights;
  • Defamation;
  • Intentional/negligent/reckless conduct;
  • Dangerous instrumentality/product;
  • Intentional infliction of emotional distress;
  • Violation of the New Hampshire Consumer Protection Act;
  • False designations in violation of the Lanham Act; and
  • Willful and wanton conduct.

The case was presided over by U.S. District Judge Joseph LaPlante in New Hampshire, and the ruling was returned on March 27. It’s a lot to wade through, but if you cut to the chase – or rather the conclusion – you’ll see that FriendFinder’s motion to dismiss was granted in part and denied in part. Specifically, the seventh item, false designations in violations of the Lanham Act, stands entirely, and “Count I of the complaint is dismissed except insofar as it asserts a claim for violation of the plaintiff’s right of publicity.”

What exactly is a right of publicity? It says that a person generally has the right to control how his or her name, image, and likeness are used commercially. As it turned out, the bogus profile was apparently being used in a commercial manner. The plaintiff said that parts of the profile appeared as “teasers” on Internet search engines and advertisements on other third-party web sites – and searchers could find these teasers for the bogus profile when they entered some of the plaintiff’s true biographical information.

The right of publicity, according to the New Hampshire ruling, falls under the category of intellectual property law. This is very important, and has wider implications for other web sites, because of the exceptions made by Congress when they wrote Section 230. They explicitly stated that Section 230 will have “NO EFFECT ON INTELLECTUAL PROPERTY LAW [all caps in original]. Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”

If the right of publicity falls under intellectual property rights, then all of a sudden web sites like YouTube lose some of their legal shielding. But what gives this situation real potential for messiness is that the “right of publicity” is one of the more amorphous rights, legally speaking. The laws pertaining to this right are not uniform across all 50 states, and furthermore, there isn’t a lot of good case law on that particular right. Given that the law all but runs on precedent, this could be a train wreck waiting to happen.

You would expect a dating web site to ask its users to specify what they’re looking for in a partner, including sexual orientation. In other matching situations, there are laws that prevent certain questions from being asked, because it is illegal to discriminate based on race, sex, religion, and sexual orientation. That’s why you’ll never see any position posted on a job hunting web site that specifies applicants must be straight or gay (or bi, except for bi-lingual).

In addition to employment situations, many states forbid discrimination in housing situations. Enter Roommates.com. As you probably guessed from the name, this web site matches people looking to share housing situations. In order to match users, it asks them for certain information about what they want in a roommate – including sexual orientation. Oops.

Turns out there are housing discrimination laws that cover this very situation. So the Fair Housing Councils of the San Fernando Valley and San Diego sued Roommates.com. They alleged that the site violated the federal Fair Housing Act and California state housing discrimination laws. While a federal district court sided with Roommates.com, a Ninth Circuit Court of Appeals disagreed. You’re welcome to wade through the entire 54-page PDF of the opinion, or you could just keep reading for the rough summary.

The majority was led by Chief Judge Alex Kozinski. He denied Section 230 protection to Roommates.com on two counts. First, he said the site helped “to develop unlawful content” with its questionnaire, which every registered user had to fill out. Its structure, with preprogrammed drop-down menus, apparently made it impossible to avoid answering the offending questions. Additionally, since site users could search for roommates based on illegally discriminatory criteria, Judge Kozinski said that made Roommates.com an “information content provider.” As such, it isn’t protected by Section 230.

Judge Kozinski draws an appropriate comparison when making his ruling. “If such questions are unlawful when posed face-to-face or by telephone, they don’t magically become lawful when asked electronically online,” he wrote. “The Communications Decency Act was not meant to create a lawless no man’s land on the Internet.”

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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