The trend with websites these days is to maximize interaction with visitors. This interaction often takes the form of allowing users to upload text, photos, videos and other content. In taking this step, it is vital you understand legal issues surrounding user generated content and protect yourself.
Copyright/DMCA
It is the rare website owner who isn’t aware copyright is a hot button issue on the web these days. Despite this, it is rather surprising how many don’t take steps to protect themselves with available liability safe harbors.
The primary problem appears to be most site owners believe they can escape liability for copyright infringement if they do not initiate the upload of the offending content. This is incorrect. Websites can be held liable for contributory infringement at a minimum with other creative claims being made as well.
The Digital Millennium Copyright Act of 1998 provides websites with a safe harbor from copyright claims arising from user generated content. The safe harbor applies only to monetary claims, not efforts to seek injunctive relief. Still, the party complying with the Act can effectively eliminate the risking of copyright infringement litigation, a significant boon if ever there was one.
Slander
Millions of people assume they are protected by anonymity when they go online. Nothing is further from the truth. From IP addresses to cookies, there exist numerous ways to track a person and there are plenty of stories in the news of this being done. Despite this, the false sense of security leads people to undertake the most astonishing of moves. This is particularly true when it comes to making slanderous statements.
Let’s assume you and I are DUI attorneys in the same market. We compete aggressively online for clients. We are both listed on Yelp.com, a site where customers and clients leave reviews of businesses. I register with the site under a false name and write a highly slanderous review of you and your practice. While you can clearly litigate against me, can you also bring an action against Yelp for publishing the offending comments? One has to look to the Communications Decency Act for an answer.
As the name hints at, the Communications Decency Act of 1996 was designed to limit the availability of pornography online. Congress overreached as usual and the vast majority of the Act was thrown out in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
Section 230 of the Act, however, survived the constitutional challenge. Had Section 230 been invalidated, sites such as Facebook and Twitter may well have been snuffed out in their early days under an avalanche of litigation.
Section 230 is critical to the web because it carves out a safe harbor for sites allowing users to post content. The safe harbor is applicable to any legal claims where a publication is an element of the action, to wit, claims such as slander. This immunity is available to the site, but does not extend to the party who originated the offending statement.
Returning to DUI attorney example, any claims made against Yelp related to slander would wither and die quickly on the branches of Section 230. This would not prevent counsel from pursuing me for the offending remarks, but the site would remain untouched.
Seeking Safe Harbors
The safe harbor protection provided under Section 230 of the Communications Decency Act is automatic. The online business in question need not take any affirmative steps to gain access to it. The same is not true for the DMCA.
An online business must take affirmative steps to gain the DMCA safe harbor protection. Listing and explaining the compliance steps is beyond the scope of this article, but any site allowing user generated content to be posted should consult with legal counsel on the compliance procedure.
In Closing
User generated content is one of the more popular business models online at the moment. While the approach can be lucrative, it is critical online businesses take the necessary steps to minimize legal exposure.
Richard Chapo
12+ years sharing great legal advice
