Courts chip away at Web sites' decade-old legal shield
For more than a decade, Web site operators have enjoyed a broad legal shield against lawsuits filed over material posted by their users, which has let user-driven sites like YouTube and MySpace.com flourish.
But a pair of recent rulings by federal district judges have chipped away at that protective shield. 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.
"We fear these cases might inspire a wave of new lawsuits that, even if ultimately dismissed, will create a chilling effect," said Sophia Cope, an attorney for the Center for Democracy and Technology, which has filed briefs supporting broad immunity and gets some financial support from a number of prominent Internet companies. "Many small start-up Web services might find that the costs of defending such suits--in terms of time and legal fees--are too much to bear."
The legal shield comes from a portion of the 1996 Telecommunications Act, which generally says Web sites aren't liable for their users' posts or other content they provide. That has immunized the dot-com industry from a wide range of civil lawsuits spanning everything from defamation to--in a case decided last year involving MySpace--lawsuits alleging that better child safety and age verification measures should have been put into place. (Individual "content providers" who post defamatory comments, upload inflammatory videos of their own creation, and the like, are still vulnerable to lawsuits.)
In early test cases such as Zeran v. AOL, courts have interpreted Section 230 of the Telecommunications Act to supply fairly broad immunity for Web hosts. That trend has largely continued in recent years, with judges finding, for example, that dating site Matchmaker.com was immune from a lawsuit involving an unknown prankster's phony profile impersonating actress Christianne Carafano, and that Craigslist wasn't responsible for allegedly discriminatory housing ads posted by users of the online classifieds site.
Perhaps ironically, the recent decisions that seem to be taking a narrower interpretation of Section 230 also stem from disputes over online dating and roommate matching.
'Bogus' FriendFinder profiles
The first of the two cases pits an anonymous New Hampshire woman against the FriendFinder Network, an operator of dating sites--some sexually explicit--including AdultFriendFinder.com and LesbianPersonals.com. Jane Doe accused FriendFinder of causing her various sorts of harm by allowing "bogus" sexually explicit profiles that could be "reasonably identified" as portraying herself to be published without her knowledge by someone else to its Web properties, as well as in snippets in FriendFinder advertisements on search engines and other third-party Web sites.
FriendFinder Network (screenshot shown here) was accused of allowing an unknown user to post a "bogus," sexually explicit profile of a New Hampshire woman on its online dating Web sites and in its ads.
A recent ruling by U.S. District Judge Joseph LaPlante in New Hampshire federal court on March 27 partially sided with FriendFinder, ruling against some of Jane Doe's claims against the company.
But LaPlante also differed from previous opinions in one important area. He refused to dismiss Jane Doe's argument that FriendFinder's republication of her profile invaded her "intellectual-property rights" under New Hampshire law. She claimed to be concerned about violations to her "right of publicity," which says an individual generally has the right to control how his name, image, and likeness is used commercially--and the court ruled that Doe's argument fell into the category of intellectual-property law.
That point is crucial because, when writing Section 230, Congress explicitly said its shield does not extend to lawsuits "pertaining to intellectual property." Until Judge LaPlante's order, courts had viewed that only as applying to federal claims mostly about copyrights and trademarks--and not state lawsuits over more amorphous publicity rights.
The reasons this could create headaches for Web publishers are twofold, said Eric Goldman, director of the High Tech Law Institute at Santa Clara University. For one thing, laws governing "rights of publicity" are not uniform across the states, which means e-commerce companies would be forced to align their operations with the most restrictive state's law.
And unlike in copyright or trademark cases, where there are fairly well-established rules governing how Web sites are supposed to respond to such infractions posted by third parties, "we don't know what rules are; we have no good case law" on rights of publicity, Goldman added.
Others fear that the ruling could prompt legal mischief. For instance, courts have ruled in the past that Web publishers can be immunized for posts that tarnish someone's reputation--a practice typically covered by defamation laws. CDT's Cope said she's concerned the intellectual-property exception will "swallow the rule," inspiring other courts to allow plaintiffs to slip in defamation claims and others under the guise of "intellectual property" claims.
Judge LaPlante's ruling, however, is not the end of the case. The court can now hear evidence on whether to agree with Jane Doe's remaining allegations. Judges aren't exactly known for changing their minds, once they've made a decision. But Ira Rothken, the lead attorney defending FriendFinder in the case, said he believes any subsequent appeal to the 1st Circuit would result in a finding that state-level intellectual-property laws, too, are subject to the Section 230 exemption.
Roommates.com's matchmaking woes
The other Section 230 saga concerns a Web site called Roommates.com, which allows users to set up profiles and seek roommate matches in thousands of U.S. cities. One of the ways the site attempts to spark matches is through requiring members to complete questionnaires that stock their profiles with a number of personal details, including their gender, sexual orientation, and whether they have children, according to court documents.
Roommates.com found itself on the receiving end of a lawsuit, in part because it asks users to indicate the sexual orientation they're seeking in would-be roommates.
Those personal queries drew a lawsuit from the Fair Housing Councils of the San Fernando Valley and San Diego, which claimed they violated the federal Fair Housing Act and California state housing discrimination laws. A federal district sided with Roommates.com's argument that Section 230 immunized it from such claims, but a divided 9th Circuit Court of Appeals recently disagreed, and that's why implications for other Web publishers could arise. (Here's a PDF of that 54-page opinion.)
The majority, led by Chief Judge Alex Kozinski, ruled that Roommates was not covered by Section 230's shield because it helped "to develop unlawful content" through its requisite questionnaire, which featured preprogrammed drop-down menus containing various possible answers for the allegedly offending questions. The judges also said that because Roommates.com engineered its site in a way that allows site users to search for and sort roommate listings based on those criteria, it's an "information content provider," which, by law, isn't immune to Section 230.
"If such questions are unlawful when posed face-to-face or by telephone, they don't magically become lawful when asked electronically online," Kozinski wrote. "The Communications Decency Act was not meant to create a lawless no man's land on the Internet." (The CDA, the "antiporn" sections of which were struck down by the U.S. Supreme Court on First Amendment grounds, was included in the 1996 Telecommunications Act.)
By contrast, the same judges found that it was no problem for Roommates to ask users to write an open-ended summary of what they're seeking in a roommate, since that request was "neutral."
If that way of thinking is ultimately applied more broadly, the millions of Web sites that routinely use prompts and drop-down menus to solicit, publish, and sort information from their users could be forced to change their practices or face new legal liability, the three dissenting judges argued.
"The majority's unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned," Circuit Judge M. Margaret McKeown wrote for the dissent. "Instead of the 'robust' immunity envisioned by Congress, interactive service providers are left scratching their heads and wondering where immunity ends and liability begins."
This case was closely watched, leading Amazon.com, Google, the Electronic Frontier Foundation, the American Civil Liberties Union, and a number of news organizations to file briefs with the court in support of Roommates. They argued that a decision in favor of the fair-housing groups would choke innovative new Web services and stifle free speech in online forums--particularly the "sortable" user ratings and feedback at sites like eBay and Amazon.com, and "tagging" features at sites like YouTube and Flickr.
One attorney who analyzed the case said the majority's stance, which clearly took aim at business practices considered unfriendly to fair-housing laws, said the case may represent a narrowing of the law but could actually be good for Web site operators who value Section 230.
"Imagine, shall we say, a 'progressive' congressman standing up in Washington and saying, hey, with this Section 230 scheme, we give a license to Web site operators to run hate mills, build up bastions of bigotry, and sanctuaries for racism," Evan Brown, a Chicago-based attorney who focuses on Internet law, wrote in a recent blog post. "In short, a Roommates.com victory could have given a battalion's worth of ammunition--in the form of emotional, irrational, rhetoric--to Section 230's critics. Some in Congress would have called for its head."
Sites that profit from user-generated content have been remiss in providing controls and features to allow people claim their own information. They have spent way more on tools to target advertising then they have to provide protection for privacy abuses. Worse, they have used the current laws as an excuse to do nothing.
Compounding the problem is their protection of the anonymous sources of UGC. In order to get the law's protection, sites should have some minumum standard of tracking, verification, and response to allow individuals to protect themselves against attack and abuse.
Those that seek to profit from the free exchange of ideas have a responsibility to provide tools for the protection of everyone's rights.
If I or my family are attacked, abused, discriminated against, and defamed, I will fight back. I would make no distinction between the attacker and the site that supports, hides, and defends that attacker. If that site does not provide me the tools for redress, then the courts and state houses will be used instead.
Your tools for redress ARE the courts. Or are you not satisfied that you may actually have to work 'hard' and spend some of your own 'money' to file a suit in order to attempt to force the company to reveal enough information about the user (IP address for instance) that could be further used to request discovery from the ISP or Telecom they used so as to identify the user...so you can then sue them ?
Why should a business owner be burdened with your personal idea of what constitutes "tools" so you can take the easy road and just have that user's posts deleted because you feel slighted? They shouldn't unless you prefer to live in a socialist/pseudo-communist society. It appears increasingly factual that our once great society is has become a (laughing stock) bastion of self-centered, entitlement "me" mentality completely bereft of any personal responsibility. It's not others' responsibility to defend ourselves, it's our "Personal Responsibility" to defend ourselves. Or, should the government do that for us too by taking more tax dollars from everyone else to achieve it?
The court's decision in this case in completely unenforceable on a private party (company) who offers the ability for it's users to make this choice for themselves. It's plainly unconstitutional. But what else would we expect from such a bastion of "freedom" as California's famous "9th Circuit Court". This case will likely be appealed to the Supreme Court who will "rightly" overturn this bogus and anti-american decision.
Nobody is responsible for anybody else but themselves. You would be much better served making important distincions about issues like this because it is not the site that commited the offense. It is a person usually unaffiliated with the site. If these organizations were to hire the kind of staff it would take to monitor the unbelieveable amount of data that these sites process, there would be no money to continue operating.
"The current legal shield does not protect free speech and liberty. It protects profit and property."
You should really think about what you are saying with that statement. People have the right to free speech, but by your threats to attack anyone who exercises that right, you are ultimately trying to remove peoples right to free speech yourself. Learn to just grow up and stop caring what people say. If the person is an idiot, people will catch on and not take that person seriously. If the person is not an idiot, maybe you should consider that what they are saying is true whether you like it or not.
Just as we all have the right to free speech, we also have the right to not listen. Get over it and grow up
That is the ONLY way to do it without risking an Internet that is unavailable and/or unrecognizable in time.
Any one of our opinions are just as valid as any others until a JUDGE rules on it!! So says one of our Supreme Court Justices in Oklahoma! I believe he is right.
"Too bad. If I fight back another factory moves overseas."
It is in many cases to protect ourselves that we turn to the courts. Often, it is our only tool we have to fight with. Our laws are there to protect the individual, not the corporation. Many times they protect us from the corporation. You have mistakenly combined the two.
If web properties do not empower individuals to protect themselves from abuse and attack, then the court is the only recourse.
Why is it that our government is showing the general public that it is ok to not be responsible for themselves?
If a person writes something bad about somebody in a bathroom stall, is it the resturaunts fault? If I pee a bad comment about somebody in the snow, is it mother natures fault?
Not only are these rulings a violation of everyones right to freedom of speech, but it is a violation of common sense and the greater good. These companies should in no way be responsible for the antics of everyone else. Hold the idiots who are breaking the law accountable, not the people who are just trying to provide services to those people who do want to use these services properly.
Did you even read the original article?
I don't need to sue anyone, because if your comments were truly offensive (instead of just a bit unintelligent) CNET provides a simple and straightforward tool to report personal attacks, terms of use protecting individuals, and smarts to use it wisely. Other web sites should follow the same example. Not cause its legal, or because they may be sued. Because it is the right and responsible thing to do.
And you should really switch to decaf and lay off AM radio for awhile.
How can you say you support free speech when you are trying to hold everyone and their mother accountable for the ignorant actions of others.
The major point here is that sites don't have to do aything. Just as you don't have to do aything. If you don't like how that site operates, don't use it. Just as you are not responsible for anyone else's actions, sites are not responsible for anyone else's actions. Get over it.
And to answer your main question. I am angry because of the overflowing ingnorance that plauges everyones thought process. It is people who spend way less time thinking than they do complaining that cause these issues. One moron writes some crap about something stupid using small words that the rest of the morons can understand and next thing you know you have 295 million amerians jumping on some bandwagon because they agree with some moron's fact hollow opinion. The other 5 million americans that are not suffering from self inflicted retardation go on with their lives while society crumbles behind them. I am not ok with that.
If we force these companies to police the content of their members... they're going to take the conservative approach. I can't see how that would NOT impact freedom of speech.
Now... restricting what these companies can do with our imformation... and how they can disseminate it... I don't have a problem with that.
Just because they don't call themselves Realtors doesn't mean that isn't what their doing via their website. They are equally liable for any laws governing these services in person, by phone, and by mail.
By providing a service that specifically targets these questions from users and has predefined ways of responding to them they are breaking fair housing rules.
Now if they want to store a user written posting of themselves and their community then the Fair Housing Laws are between the user and the government. The company is simply providing storage for the information. But, enabling searchers to search by illegal criteria specifically violates the part of Fair Housing where the middle man isn't allowed to answer those questions.
Seriously. I can't imagine why anyone would want to voice their opinion here. You should give people a checklist - so they know to go elsewhere if their opinions don't perfectly match yours.
Sorry this place does not work out for you, I am sure there is a site about holding hands and singing folk songs somewhere else that will fit you just fine.
In general, though, one of the prices of freedom of speech is that you need to have a thick skin.
In my opinion, the benefits of this freedom far outweigh the costs.
Somebody has to be responsible and apparently it wasn't the person who wrote whatever was offensive that initiated the court case. You can not leverage controls and restrict the content of The World Wide Web by holding the individual culpable for their behavior.
The Article Said:
He refused to dismiss Jane Doe's argument that FriendFinder's republication of her profile invaded her "intellectual-property rights" under New Hampshire law. She claimed to be concerned about violations to her "right of publicity," which says an individual generally has the right to control how his name, image, and likeness is used commercially.
So what you are saying, aqvarivs, is that New Hampshire law is wrong and this person does not have a to control how his name, image, and likeness is used commercially. I'm sorry but this court case seems to be making an 'individual' (FriendFinder) responsible for violating another person's property rights. How is this 'us' vs 'them'??? What EXACTLY is unreasonable in this particular case?
Or are you ranting in general terms without actually understanding the issue in this article?
If the Government wants to be retarded then these services should show them how dumb they really are. Sites like MySpace, YouTube, Facebook, Google, Yahoo, or whatever sites that have user posted content and get together and simply shut their servers off for about a week.
The only thing you would see at their sites is a page explaining why. Maybe even cell phone companies. How long before Government tells cell companies they have to filter all text messages before they're sent. Who knows?
The people would quickly realize how wrong the Government is. Then perhaps a representative for the group could get on TV and say, "Hey, the people control the Government. Not the other way around." I really thinks that is the kind of protest we are going to need in this country for the Government to get their act together.
But like I said in the subject line, it'll never happen. That's just not profitable you know.
Our constitution was put into place to prevent our government from doing this very kind of thing, and now the constitution has been so ammended and twisted and taken out of context that it doesn't even make sense.
How many people know that there is a section in the Bill of Rights that allows citizens of the United States to take any means necessary to restore order to the government in the event that the government is violationg the rights of citizens that are supposed to be protected by this very constitution?
The idea they have to police everything by themselves, and find content before anybody sees it is what I'm worried about. It wasn't long ago I saw a news lady berating YouTube for a violent video that was posted suggesting YouTube should have already done something about it. Done what? finding stuff like that takes time and people.
It just isn't possible to do it that quickly yet, and still have a site like YouTube.
However, most sites do take things down once reported. I think most would agree with that. The way the media has been framing this argument, and the websites with no moral values whatsoever is part of the problem. It gives responsible sites a bad name so to speak.
If a user goes to a site that admittedly contains information POSTED BY OTHER PEOPLE NOT AFFILIATED WITH THE SITE that is not accurate, IT IS THAT USERS RESPONSIBLITY to apply logic to the situation.
Newspapers and Radio Stations are organizations whos sole duty is to report the news. If the news is always wrong, people would (or should) just stop watching that news program. Nobody watches, advertisers stop advertising, the news program dies. Nature takes it's course and it did not even require some big media event, or lawsuit, or protests. The problem is people never grow up.
Keep commending these communist judges and pretty soon you will not have the right to come on these forums and share you poorly misguided opinion with the rest of us.
I am glad to see that there are more people seeing the light on this issue compared to other similar ones.
To take away or imporperly regulate a tool of knowledge would be the biggest crime of them all.
For quite some time the GOP has used slander as a political tool and the Whitehouse has claimed that the Justice department has it's hands tied.
That has nothing to do with free speech. What you should be defending is free spech rather than to protect a private company from allowing racial bias in housing.
You should be protecting true free speech instead of defending a tool used by the GOP to force honest men to take money simply to pay for ads to publically defend their good names.
Free speech is protected, but if that speech is proven to be lies with the intent to harm or slander, that web site has an obligation to remove that slander.
If a website is made aware of racially biased rentals, they are obligated by Federal laws to remove those ads.
I was once on a national Vietnam Era Vetrans group board. I found thousands of virused emailed to me. My good name was slandered by people using fake email addresses and fake names. Each time I tried to get the web servers to block the thousands of virus attacks and slander, the Internet providers refused.
That made it impossible for real veterans with real problems with the VA to email me. The far right won and thousands of badly disabled veterans lost!
I am not speaking of protected speech. I am talking about an intent to do harm. We must use common sense and not blindly follow the dictates of what is obviously a misuse of words.
Free speech means the right to speak your mind. It is not a licence to harm an innocent woman. It is not a licence to refuse to rent to minorities.
Mark Heinemann
Veteran
The democratic party gives as good as it gets.
And, no, I'm not a republican... I'm an independent.
But this is part of the problem. It seems that it's more important to some democrats to see the republican party fail than it is to see America succeed. And a similar statement can be made about the GOP.
Do you even realize that you're slandering an entire group of people in your post? The "far right" generally has a better record of supporting the military than the "far left" does in my experience.
You seem to be doing the very thing you're condeming. Those people who attacked you don't represent the "far right" any more than the radicals shooting people at abortion clinics represented "christians" or any more than Hitler represented "Germans" of the 1940's (or any era). Don't pretend otherwise in order to slander the entire group.
Most of the people on the "far right" that I know would not send an email knowingly infected with a virus. Most of the people on the "far left" that I know would not send an email knowingly infected with a virus. Labelling either group as, entirely, a bunch of fanatics willing to slander your name and disable your computer system via infected email only strains your own credibility.
It makes me wonder what the other side of the story is...
As far as the original artical goes... what companies can do with the personal data we put on their sites should be regulated. That has nothing to do with free speach.
The second issue is trickier. From my understanding it's more about finding a roommate than denying housing (one does not necessarily imply the other). But I'd have to look at it in more detail before I considered my opinion an informed one.
Those who send viruses don't care if you're a veteran, or a Democrat, or a Republican. Automated "bots" harvest e-mail addresses from all kinds of webpages, and broadcast virus emails to them. A good provider runs an antivirus on their email server, to clean the garbage.
Find another email provider. Be happy.
Regarding "refusal to rent": roommate choice is a matter of personal discretion. Nobody can order somebody to accept a roommate indiscriminately.
No they are not. In good taste, maybe they should, but they are not required to do anything. If you do not like that website based on it's practices, do not use it.
You are also one of the people that is part of the problem. This is not about your politcal position or your personal opinion of the GOP. It also means nothing that you are a veteran. Good for you for serving your country, but right now you can go "f" yourself because what you are talking about is allowing the illusion of free speech but actually regulating it so it fits within your personal boundries.
Your post is hypocritical and way off target. How can you say defend free speech while saying regulate speech at the same time? Figure it out.
Nothing but a meaningless marketing term. Even worse than 'blog'.
- There should be SOME recourse.
- by ebg_51 April 9, 2008 11:47 AM PDT
- The anonymity of the Internet makes it easy for people to abuse it or other people. In an imperfect world, the only way to protect the innocent, it seems, is to FORCE someone to be legally responsible. In this case it is the Web-Site Provider. To make everyone who uses a web-site responsible would be better, but the government wants Cheap & Easy to fix this. If there were tighter controls for logging onto a web site, it would be easier to track down the guilty ones.
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- Social Politics Playing Out In The Courts
- by aqvarivs April 9, 2008 1:32 PM PDT
- There is an easy method of tracking individuals regardless of user name. It's called IP Address and is very effective when the government wants to use it. However there are those individuals, some organised, who want to profit by their victimisation, whether real or imagined, and they know that the big money lies with the corporation while the individual may only pay a fine or receive a short jail term. So they include everyone in the charge sheet and every charge possible. It's a lawyers trick. And the Police have picked it up. Ever notice how Johnny drug-dealer gets busted and ends up in court facing 32 counts instead of a single charge. They use criminal charges like buckshot firing wildly at their target hoping something will stick.
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- What we have right now is fine!
- by kkotd April 9, 2008 9:00 PM PDT
- Here's the deal mate, the internet is a dirty place, you can hide behind any wall, any door, any freaking window. As an admin, you do not always know who everyone is, specifically their Internet Protocol Address. There are several ways to fake such things, and the ones that start trouble are usually doing so. The web is not meant for only people that can watch it 24/7 and can baby users all the time, slapping them on the cyber hand every time they do wrong, because, to put it quite honestly, it is to damn big. When you have a website that has several thousand hits a day and a forum that fills up with over ten thousand posts, we can't filter all that. But we do have a button that if something is not supposed to be on there then there is a ticket made up and it is looked at. But ultimately, it is the people who are whining and complaining about the copyrights to use the tools they already have, instead of making new ones. There is something known as the Cease and Desist Letter. This thing is like a nuclear bomb to us web admins. We get one of these and we will look at what they are talking about, we usually will take the content down for investigation immediately. If not within 2-3 days. Now if we find this not to be wrong we will put it back up and tell them why it isn't against the laws or TOS. But if we do so then we are taking our own responsibility for that action. That is the ONLY time that we are responsible for anything our users post and even then there are loopholes to get around it. So, don't kill the good admins by making up stupid new laws that are going so far as to have a law suit that would have to start at the international hub (o yea they are the ISPs for the ISPs) it would then drain into the next company and then the next and then next and the next. Now taking how a 2 level trial takes 10 years on average to complete, think about a 8 level trial with 8 people having to sue the next level down because they are being sued for content laws that are crazy. Wanta blow up the internet? Fine make your own and do it but don't blow up my internets!
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- It is amazing...
- by smokified April 10, 2008 12:24 PM PDT
- That you have not read all of the other user comments before saying something so stupid that has been flamed down already a number of times.
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(126 Comments)Have you not been paying attention your whole life? They keep making more laws and tigher restrictions and the crime rate continues to rise. What does that say about your ever so simple solution? IT DOES NOT WORK.
How in the hell can people be so friggin blind that even after 20-30-70-90 years they cannot see that something that doesn't work, doesn't work.
You think that FORCING somebody to do things is the way to solve the debate of who should be responsible for what?
There are so many things that can be exploited and abused, why do you feel that this one is the one that needs to be regulated?
If I expolit a drunk women's poor judgment, should we hold the liquor store, bar or brewery responsible? Should we FORCE these establishments to not sell to people who they feel might not be responsible enought to drink? Should we force them to give everyone a psych eval before selling them liquor?
Sounds pretty stupid doesn't it? Now imagine how the rest of us feel about your ridiculous solution to the problem.