EFF: EFF bootcamp JKMH BestPracOSPs

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October 10, 2007Fenwick & West Conference Center

EFF 2007Bootcamp 2.0

Best Practices for OSPs:Defamation and theCommunications Decency

Act

Jennifer Lloyd Kelly, Fenwick & West,LLP

Marcia Hofmann, EFF





Presenters

• Jennifer Lloyd Kelly, Litigation Associate,Fenwick & West LLP

– Practice focuses on intellectualproperty and commercial disputes,primarily for local technologycompanies.

• Marcia Hofmann, Staff Attorney, EFF

– Practice focuses on information-related policy and litigation.





Overview

• What kinds of problems arise when yourwebsite has user-generated content?

• Basics of defamation law – which kindsof statements could subject the user(and potentially your company) toliability?

• Communications Decency Act Section230 – what steps you can take toprotect yourself from liability.







User-Generated Content –Common Problem # 1 Example





User-Generated Content –Common Problem #2

• User posts another person’s privateinformation – personally identifying

information (name, address, SSN),saucy photographs, pornographic orotherwise private videos.





User-Generated Content –Common Problem #2 Example

• Barnes v. Yahoo:– Woman’s ex-boyfriend created and posted

unauthorized “profiles” about her on Yahoo’s website that contained nudephotographs and contact information, and,while impersonating her, solicited men forsex in chat rooms.

– Woman contacted Yahoo and demanded theoffending materials be removed. Yahooagreed to do so, but did not actually removethem until after she filed lawsuit.

– Lawsuit premised on this failed promise.






• User solicits in a discriminatory manner.

• Examples:

– Person posts housing ad on Craig’sList that allegedly violates the federalFair Housing Act.

– Company runs roommate matching

service that allows users to advertiseopenings for roommates, whichprovides structured data fields withpull down menus.





User-Generated Content –Common Problem #3 Example






• Employee uses companyemail/computer/network to send emails

and post information that threatens orharasses others.

• Example: Delfino v. Agilent (using hiswork computer, employee of Agilentsent emails and posted information thatharassed plaintiff).





Defamation

• Elements of claim:

– A statement about a person to

someone other than that person– That is a false statement of fact

– Which tends to harm the reputation of

the person





Defamation• Per se defamation: harm to reputation

is presumed–

– Attacks on a person’s professionalcharacter or standing

– Allegations that an unmarried personis unchaste

– Allegations that a person has an STD– Allegations that a person has

committed a crime of moral turpitude(murder, adultery)





Defamation

• Important limitations/defenses:

– Statement must actually be false.

– Statement must be of a verifiable fact,not an opinion (“George stole thepainting” vs. “That painting is hideous”or “George is a fool”).

– Public figures must prove “actualmalice.”

– Privilege for certain types of statementsmade in official proceedings or publicmeetings





Defamation

• Republication:

– Absent immunity, anyone who

repeats or republishes a defamatorystatement made by another can beheld liable for defamation if theyknew or had reason to know thestatement was defamatory.





Content From Third Parties

• Can your company be held liable forunlawful material that users post on its

website?• Do you have any obligation to police

user-generated content?

• Can you alter content that users post onyour site? If so, how much?





Communications Decency Act

Section 230

“No provider or user of an interactive

computer service shall be treated as thepublisher or speaker of any informationprovided by another informationcontent provider.”





Communications Decency Act

Section 230

“No cause of action may be brought and

no liability may be imposed under anyState or local law that is inconsistentwith this section.”







Elements

Section 230 immunity requires that:

– the defendant be a provider or user of

an interactive computer service,– the cause of action treat the

defendant as a publisher or speakerof information, and

– the information be provided byanother information content provider.





What’s a “provider or user of an

interactive computer service”?

A broad variety of online publishers.

Examples:– Traditional ISPs

– Website operators (includingbloggers)

– Listserv operators

– Users of online services





What kinds of suits does Section

230 protect against?

A wide range of legal claims. Examples:

– Defamation

– Unfair competition

– Invasion of privacy

– Breach of contract

– State intellectual property claims

– Federal civil rights claims





Limitations• Section 230 doesn't apply to federal

criminal claims, intellectual property

claims, or electronic communicationsprivacy laws.

• You can select, withdraw, or edit user

content, but immunity may not apply if you significantly change the meaning of the content.





Other Things to Know

• Efforts to police content are irrelevant

for purposes of § 230 immunity.

• If a situation is a close call, you shouldcheck with a lawyer.





Best Practices

• If someone threatens to sue yourcompany for publishing content

protected by Section 230, you can senda letter asserting that you haveimmunity.

• You might work with an attorney todevelop a form letter for suchsituations.





To Sum Up• Section 230 protects OSPs from a wide

range of claims based on contentprovided by others (though does notextend to federal criminal, IP, orelectronic communications claims).

• You won’t lose immunity for selecting

and editing user content, but you can’tsignificantly change the meaning of it.





To Sum Up

• Immunity may apply regardless of whether you choose to police content

on your site.

• Work with a lawyer to develop a formletter for Section 230 situations. If you

have questions about the law or areunsure whether it protects you in acertain situation, consult an attorney.





Questions?Jennifer Lloyd Kelly, Associate

Fenwick & West LLP

[email protected]

Marcia Hofmann, Staff Attorney

Electronic Frontier Foundation

[email protected]

http://www.eff.org

Documents

EFF: EFF bootcamp JKMH BestPracOSPs