What should you do if users start using your client’s website to post hateful, obscene or defamatory comments and images? User-posted content can damage your business image and, with the wrong set of facts, result in legal liability.
One of the key laws that operators of websites and online services that allow the upload of user content should be aware of is Section 230 of Communications Decency Act (CDA) of 1996. Section 230 of the CDA is a critically important federal law that can serve as a shield from liability for online service providers (like Twitter, forums and bloggers). It provides that “[n]o 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.” This means that social networks, for example, can offer platforms for discussion and expression without the concern that they will be sued for user-generated content. This is even true for providers that encourage controversial, hateful and offensive content, such as unfavorable reviews of service, allegations of fraud perpetrated on consumers, reports of unsanitary conditions, and even defamatory comments on social gossip sites.
However, in order to enjoy this protection from liability, content providers must not edit the user-generated content in such a way as to become the “content provider.” For this reason, care must be taken when developing a new online service to not overly edit or manage user content in a way that makes the operator more than a mere conduit for expression.
A key case that defines limits of the CDA immunity is a 2008 decision by the 9th U.S. Circuit Court of Appeals, Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). In Roommates, the court found that the operator a website that discriminated against housing applicants in violation of the Fair Housing Act was not protected by the CDA, because the website operator “materially contributed” to the unlawful nature of the content. The court noted that a website operator can only enjoy the immunity of the CDA if that operator is not also an “information content provider” as described in Section 230(f)(3) of the CDA. By building a website that seemed, in part, purpose-built to enable housing discrimination (e.g., by allowing users to filter potential roommates by sexual orientation), the website operator went from being a passive conduit for information to being the content provider.
In 2014, the 6th U.S. Circuit Court of Appeals considered whether the CDA protected the operator of a website that encouraged users to upload “dirt” on everyday people, which...
