WASHINGTON, DC – Two recent rulings in federal district courts has chipped away at the so-called “safe-harbor” provisions in federal law that protect internet service providers and community websites from lawsuits based on users’ postings.The safe harbors arise out of Section 230 of the 1996 Telecommunications Act (of which the Communications Decency Act is a part), which for more than a decade has been interpreted to mean most websites aren’t civilly liable for content posted by users. The act has protected websites from libel actions and allegations they didn’t do enough to protect minors from harmful matter and interactions. Section 230 has protected Craig’s list from a lawsuit accusing it of complicity in discriminatory housing ads users posted to the classified ads site, and shielded Matchmaker.com from accusations it didn’t do enough to validate users’ identities when someone posted a prank profile of actress Christianne Carafano to the dating site.
However, the two most recent cases have turned the tables on sites AdultFriendFinder and Roommates.com in similar situations.
In the first case, an anonymous New Hampshire woman is suing the FriendFinder Network over a phony, sexually explicit profile another user uploaded without the alleged victim’s permission. According to the suit, Jane Doe suffered various kinds of harm when she was recognized in the photos — which appeared not only within the FriendFinder Network but also in ads on search engines and other websites.
On March 27th, in a split ruling that partially favored both sides in the case, U.S. District Judge Joseph LaPlante dismissed most of Doe’s complaints but refused to dismiss her allegation that FriendFinder violated her “right of publicity” under New Hampshire law by allowing her images to be republished in ads on third-party websites. According to LaPlante, the “right of publicity” fits squarely into the category of intellectual property, and Section 230 explicitly excludes intellectual property from its protections.
Until LaPlante’s ruling, most courts and judges had interpreted “intellectual property” as mentioned in Section 230 to reference only federal issues like copyrights and trademarks, not to state laws governing rights of publicity. Those rights vary widely from state to state and therefore could represent a tremendous headache for Web publishers.
In addition, when it comes to rights of publicity and how Web publishers must respond to complaints, “we don’t know what rules are; we have no good case law,” Eric Goldman, director of the High Tech Law Institute at Santa Clara University, told News.com’s Anne Broache.
Ira Rothken, the attorney representing FriendFinder in the case, told Broache he expects LaPlante’s ruling to be appealed to the 1st Circuit. When it is, he said, he believes the appellate court will find states’ “rights of publicity” laws also are superseded by the Section 230 exemption.
In the Roommates.com case, the Fair Housing Councils of the San Fernando Valley and San Diego sued the roommate-matching site over what the councils considered illegally intrusive demographic questionnaires the website requires all users to complete. Roommates.com uses the questionnaires to facilitate matches, but the councils claimed some of the questions violated the federal Fair Housing Act and related California law.
A federal district court ruled that Section 230 immunized Roommates.com from such claims, but that decision was overturned by the 9th Circuit on appeal. Chief Judge Alex Kozinski, writing for the majority, said Roommates.com was not covered by Section 230 because its questionnaire “helped to develop unlawful content” by allowing users to select their answers from pre-programmed drop-down lists. In addition, because the website allows users to search for matches based on answers to the questionnaire, the site serves as an “information content provider” and therefore is not covered by Section 230, the judges ruled.
“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.”
On the other hand, the judges noted, Roommates.com would be on firm legal footing if it allowed users to write open-ended essays summarizing what they seek in a roommate.
“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 dissenting minority. “Instead of the ‘robust’ immunity envisioned by Congress, interactive service providers are left scratching their heads and wondering where immunity ends and liability begins.”
That decision also may be appealed.
The rulings, if they are upheld on appeal, could have a monumental effect on the way websites operate, according to observers.
“We fear these cases might inspire a wave of new lawsuits that, even if ultimately dismissed, will create a chilling effect [on speech],” Sophia Cope, an attorney for the Center for Democracy and Technology, told News.com.
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 CDT, Amazon, Google, the Electronic Frontier Foundation, the American Civil Liberties Union and a number of news organizations have filed briefs supporting the defendants in one or both cases.
