Third-Party Content

By now you've heard that the Ninth Circuit, sitting en banc, reaffirmed the previous Roommates.com decision. There's lots of excellent coverage out there -- some notable examples include the Online Liability Blog, Info/Law, Internet Cases, and Eric Goldman's Law & Technology Blog. The new decision, written by Judge Kozinski, may have exploded forever the longstanding assumption (among Internet lawyers, at least) that website operators would always be immune under section 230 of the Communications Decency Act (CDA 230) for publishing and organizing content provided by their users, so long as the underlying claim didn't involve intellectual property, federal criminal law, or the Electronic Communications Privacy Act. Nevertheless, we can read the case narrowly, and its impact could be inconsequential if limited to its facts. Unfortunately, aspects of the opinion make a more expansive reading possible.   read more »

In what appears to be the first case of its kind, a federal court in New Hampshire has ruled that the immunity provisions in section 230 of the Communications Decency Act (CDA 230) do not bar a state law claim for a violation of a person's "right of publicity." In so holding, the court expressly disagreed with the Ninth Circuit's decision in Perfect 10 v. CCBill LLC, which held that CDA 230 exempts only federal intellectual property law claims from its protections.   read more »

The case involves the typically disturbing facts that often arise in the CDA 230 context. The plaintiff, proceeding pseudonymously, sued defendant Friendfinder Network, which operates a number of websites, including “AdultFriendFinder.com” that bills itself as “the World’s Largest SEX and SWINGER Personal Community.” To participate, users register by entering a variety of personal information, creating online profiles that can be viewed by other members of the community.

New Jersey prosecutors have subpoenaed the controversial gossip site JuicyCampus as part of an investigation into whether the site is violating the New Jersey Consumer Fraud Act. Reports (here, here, and here) indicate that prosecutors believe that the website may be running afoul of the law by suggesting in its Terms & Conditions that it does not allow the posting of offensive material but providing no enforcement of that rule or way for users to report objectionable content. (New Jersey authorities also subpoenaed AdBrite and Google for information about how JuicyCampus represented itself to these advertising services.) Assuming the investigation moves forward, this case is sure to be a flashpoint for further debate about section 230 of the Communications Decency Act (CDA 230).   read more »

Our very own Sam Bayard popped up today in a New York Times article about the Subway v. Quiznos lawsuit, humorously named: "Can a Sandwich be Slandered?" The article does a good job highlighting the complicated issues involved in the case (and implicated by company sponsored competitions for "homemade commercials" generally).

The case itself is quite fascinating. In late 2006, Quiznos and video-sharing site iFilm co-sponsored a nationwide contest, “Quiznos v. Subway TV Ad Challenge,” inviting members of the public to submit videos comparing a Quiznos sandwich to a Subway sandwich using the theme "meat, no meat." Contestants submitted their videos to www.meatnomeat.com, and iFilm published entries on its website, where they remained following the end of the contest and selection of the winner.

Subway sued Quiznos in federal court in Connecticut, and it subsequently amended its complaint to include a claim against iFilm. Only one count of the complaint related to the Ad Challenge, and that count alleged false and misleading advertising in violation of the Lanham Act.

As the New York Times reports:

The dispute over an ad is fairly standard — companies often sue one another over advertising claims — but the video contest raises a novel legal question: Quiznos did not make the insulting submissions, so should it be held liable for user-generated content created at its behest?   read more »

Last month, an investigator at Kansas University delivered a search warrant to the Lawrence Journal-World, a highly regarded newspaper in Lawrence, Kansas, demanding access to their computer servers in order to get information about the identity of a user who had posted comments on the paper's website, LJWorld.com. The warrant, which appears to violate the federal Privacy Protection Act, raises serious concerns about governmental overreaching and highlights the need for adequate procedural protections for anonymous online speech.   read more »

Yesterday, a federal judge in Washington dismissed a class action lawsuit filed by two prominent lawyers in Seattle against Avvo Inc., the operator of Avvo.com, a website that profiles and rates lawyers and allows users to submit reviews of lawyers they have worked with. Plaintiffs also sued Mark Britton, Avvo's CEO, and 25 anonymous "John Doe" users of the site. By filing a class action lawsuit, the two lawyers are disputing not only their own rankings on the site, which they claim are unreasonably low, but are also challenging the accuracy and validity of the mathematical algorithm used by Avvo to rate and compare attorneys.

In dismissing the complaint without leave to amend, Judge Lasnik wrote that the ratings on the site are protected statements of opinion, commenting that "defendants' rating is not only defensible, it is virtually impossible to prove wrong." While evidencing clear skepticism about lawyer ratings generally, the judge also took the plaintiffs to task for bringing the lawsuit:

[P]laintiffs Browne and Wenokur want to make a federal case out of the number assigned to them because (a) it could harm their reputation, (b) it could cost them customers/fees, or (c) it could mislead the lawyer-hiring public into retaining poor lawyers or bypassing better lawyers. To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action   read more »

As a lead up to the launch of the Citizen Media Law Project's Legal Guide in January, we'll be putting up longer, substantive blog posts on various subjects covered in the guide. This first post in the series stems from a talk I gave at the Legal Risk Management in the Web 2.0 World conference in Washington, DC. As the token academic, I had the task of providing a general overview of the liability that publishers might face if they allow users to comment on or submit content to their sites. I've adapted this post from that talk.

I'll provide some brief background on section 230 of the Communications Decency Act ("CDA 230") and highlight the types of claims and online activities it covers as well as the types of activities that might fall outside CDA 230's immunity provisions.

Publisher and Distributor Liability

Before I discuss the ins and outs of CDA 230, however, I want to highlight the difference between publisher and distributor liability. Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. Thus, a book publisher or a newspaper publisher can be held liable for anything that appears within its pages. The theory behind this "publisher" liability is that a publisher has the knowledge, opportunity, and ability to exercise editorial control over the content of its publications.   read more »

Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, a widely acclaimed citizen journalism site based in Brattleboro, Vermont, were sued on November 16 for libel based on a comment submitted by one of the site's users. The lawsuit, brought by Effie Mayhew, alleges that David Dunn, the former executive director of Rescue Inc., an emergency medical services organization where Mayhew works as a volunteer, libeled her in a comment on the site.

According to the Brattleboro Reformer, which reported on the lawsuit yesterday:
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Before the Thanksgiving holiday, Steve Tobak at CNET published a useful post -- "Bloggers beware: You're liable to commit libel." In it, he gives a straightforward and largely accurate account of the elements of a defamation claim and some good general advice:

First, people usually ask the wrong question: "Can a blogger be sued for defamation?" The sad truth is that almost anybody can sue you for almost anything these days. So, don't ask that question; it's dumb. What you want to know is your responsibility under the law, and therefore, how best to protect yourself from successful litigation.

Well put. But I have to disagree with his assessment of the risks involved in hosting user comments:

Then there's the question of who's responsible for comments on a blog. Whoever publishes the Web site is responsible for content on the site. That includes comments. However, many bloggers have independent agreements to indemnify the site that publishes their blog. That may or may not include comments.

Plaintiffs can certainly sue everybody in the chain and see what sticks, though they will likely go after those with the deepest pockets. You can avoid the entire question by turning comments off.   read more »

This week, David Ardia previews our legal threats database, Colin Rhinesmith talks about a recent decision on First Amendment protections for anonymous bloggers, and Sam Bayard spotlights a defamation suit involving an Iranian blogger in Canada.

Download the MP3 (time: 9:30)

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

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