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Continuing Legal Education at the Bar Association of San Francisco: Committees

User Generated Online Content           

 

On October 27, 2009, BASF’s Litigation Section presented a panel discussion on "Liability for Online User Generated Content:  The First Amendment and Defamation Collide.”  Carla Oakley, Morgan Lewis & Bockius and Executive Committee member of the Litigation Section; Lawrence Wilson, General Counsel, Yelp; and Matt Zimmerman, Electronic Frontier Foundation, were the panelists.  More than 45 practitioners attended the program.

Overview

User Generated Content (“UGC”) includes all sorts of content, including text, videos, recordings and pictures that is posted by users of web sites, blogs and on-line services.  The content may or may not be filtered or screened by the site.  Defamation is a common challenge to UGC.  Other typical theories for lawsuits challenging UGC include negligence, intentional infliction of emotional distress, invasion of privacy, false advertising and copyright infringement. 

Legal Defenses

Potential defenses for UGC can be found in Section 230 of the Communications Decency Act (“CDA”), Section 512 of the Digital Millennium Copyright Act, the First Amendment and the Fair Use Doctrine.  The CDA and the First Amendment provide the most significant defenses and protections for defamation claims, including efforts to uncover the identity of anonymous posters of UGC. 

The Communications Decency Act provides immunity for non-IP claims.  There is a split of authority over whether the immunity covers state law IP claims.  Criminal claims also are excluded from immunity.  The defense can be asserted by interactive computer service providers and by users of interactive services.  The immunity applies where the claim treats the defendant as the publisher or speaker of information of another.  The immunity does not apply when the content is provided by the defendant, or where the defendant is responsible in whole or in part for the creation or development of the content.  As a result, control over content can result in a waiver of the immunity.  See, for example, Fair Housing of SF v. Roommates.com, where immunity did not apply to a rental and roommate finding site because of the control by the site, including requiring answers to specific questions with “drop down” content for answers, requiring users to provide answers covering illegal subject matter, and using the information provided in identifying rental options for users. 

In contrast to the broad immunity of the CDA, the Digital Millennium Copyright Act limits damages for copyright claims only. 

Practical approaches

Generally, monitoring approaches to online content fall into three broad categories:  (1) do nothing; (2) notice and take down; and (3) investigate and take down.  The “do nothing” approach is legally defensible, but has political and social risks emanating from opposition to the content.  The “notice and take down” is again legally defensible, but means that content can be removed merely based on a complaint.  The “investigate and take down” approach requires the host site to investigate the facts and simply isn’t practical.

How the host develops the site may be the best approach.  For example, the site can offer background information on the user generating the content.  The site could also allow the subject of the comment an opportunity to respond.

Anonymous postings

Individuals and companies who are the subject of anonymous UGC postings have been using litigation discovery to learn the identity of the posters.  Sometimes cases are brought solely to reveal the identity of the poster, and then the case is dropped.  The Supreme Court for decades has acknowledged that the First Amendment protects anonymous speech.  There are a variety of tests that have been developed in the state courts across the country to evaluate whether the target of a challenged anonymous message is entitled to discovery to reveal the poster’s identity.  Typically, the party seeking to reveal the identity of the poster must establish a prima facie case of defamation.  There also may be a requirement to notify the anonymous speaker so that he or she will have the opportunity to challenge the discovery request, as well as a balancing of the strength of the claim with the First Amendment right to free speech. 

In response to the increase is subpoenas to reveal the identity of anonymous speakers, California adopted a new statute, effective January 1, 2009, providing for a mandatory award of attorneys fees and costs in the event that the author of an anonymous message successfully challenges a subpoena intended to reveal the identity of someone seeking to exercise his or her free speech rights.   

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