tort liability in new media steve baron april 2, 2009

Tort Liability in New Media

Steve BaronSteve Baron

April 2, 2009April 2, 2009

MANDELL MENKES LLC 2

Content is King – But it can get you in trouble.

New media allows users and publishers to New media allows users and publishers to interact and share content.interact and share content.

But, who is legally responsible and for But, who is legally responsible and for what content?what content?


What Is User Generated Content (UGC)?

Content created by the public, not media Content created by the public, not media professionals, that appears on the Web.professionals, that appears on the Web.


Where Can You Find UGC?

Newspaper, television and radio websitesNewspaper, television and radio websites video sharing sites (YouTube)video sharing sites (YouTube) blogs (comments section)blogs (comments section) opinion sites (Yelp, Amazon.com) opinion sites (Yelp, Amazon.com) discussion boardsdiscussion boards television programs (CNN’s iReport)television programs (CNN’s iReport) contestscontests Social networking sites like MySpace, Facebook, Social networking sites like MySpace, Facebook,

LinkedIn, Twitter, and photo sharing sites such as LinkedIn, Twitter, and photo sharing sites such as Flickr, Shutterfly, Picasa and Snapfish.Flickr, Shutterfly, Picasa and Snapfish.


Where Can You Find UGC? (cont’d)

UGC has been around for a long time.UGC has been around for a long time. Examples: Pillsbury Bake-Off contests,

op-ed page of newspaper, etc.

But, new media UGC is widely But, new media UGC is widely disseminated in various media outlets and disseminated in various media outlets and does not typically receive editorial review.does not typically receive editorial review.


What Tort Liability Can Publishers Face With User Generated Content? DefamationDefamation

ObscenityObscenity

Right of Publicity/Right of PrivacyRight of Publicity/Right of Privacy

Infliction of Emotional DistressInfliction of Emotional Distress

Civil Rights (e.g., Fair Housing Law)Civil Rights (e.g., Fair Housing Law)


What Protections Exist to Shield Internet Publishers From Tort Liability?

Section 230 of the Communications Section 230 of the Communications Decency Act (CDA)Decency Act (CDA) “No provider or user of an interactive

computer service (ICS) shall be treated as the publisher or speaker of any information provided by another information content provider.”

47 U.S.C. § 230(c)(1).


What Protections Exist to Shield Publishers From Liability? (cont’d)

Section 230 encourages (but does not require) Section 230 encourages (but does not require) websites to filter or review submissions. “websites to filter or review submissions. “NoNo providerprovider or user of an interactive computer or user of an interactive computer service service shall be held liableshall be held liable on account of any on account of any action voluntarily taken action voluntarily taken in good faithin good faith to restrict to restrict access to or availability of material that the access to or availability of material that the provider or user considers to be provider or user considers to be obscene, lewd, obscene, lewd, lascivious, filthy, excessively violent, lascivious, filthy, excessively violent, harassing, or otherwise objectionableharassing, or otherwise objectionable, , whether or not such material is constitutionally whether or not such material is constitutionally protected…” 47 U.S.C. § 230 (c)(2).protected…” 47 U.S.C. § 230 (c)(2).


Exceptions/When Liability May ApplyExceptions/When Liability May Apply:: No immunity for violation of federal criminal

laws, Intellectual property violations, Right of publicity claims (in some jurisdictions),

and Applicability of the Electronic Communications

Privacy Act of 1986 or similar state laws.

What Protections Exist to Shield Publishers From Liability? (cont’d)


Fair Housing Council of San Fernando Valley v. Roommates.Com

Which Court?Which Court?

Who’s the plaintiff?Who’s the plaintiff?

Who’s the defendant?Who’s the defendant?

What are they fightin’ about?What are they fightin’ about?

What is the Court asked to decide?What is the Court asked to decide?



Court = Ninth CircuitCourt = Ninth Circuit

Plaintiff = Fair Housing Council of SFPlaintiff = Fair Housing Council of SF

Defendant = Roommates.comDefendant = Roommates.com

They are fightin’ about whether FHC violated They are fightin’ about whether FHC violated federal fair housing law by allowing users to screen federal fair housing law by allowing users to screen roommates.roommates.

Court is asked to decide whether Roommates.com Court is asked to decide whether Roommates.com is immune under Section 230 of CDA.is immune under Section 230 of CDA.



Defendant operated website to match Defendant operated website to match prospective renters with people looking for a prospective renters with people looking for a roommate. In order to view the site, users roommate. In order to view the site, users must submit information for their profiles, must submit information for their profiles, including gender, sexual orientation, and including gender, sexual orientation, and whether they live with children. Plaintiffs sued, whether they live with children. Plaintiffs sued, arguing that defendant’s business violated the arguing that defendant’s business violated the federal Fair Housing Act and California’s federal Fair Housing Act and California’s housing discrimination laws. housing discrimination laws.


Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (cont’d)


Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC(cont’d)

Court heldCourt held: : Roommates.com was not immune from liability.

Defendant became a content provider when it posted a questionnaire and required users to answer as a condition of doing business. Questions that are unlawful to ask in face-to-face interaction do not “magically” become lawful when posed online. However, “Additional Comments” section, which allowed users to write a short essay about what they were looking for in a roommate, received § 230 immunity because it was passively displayed by defendant and unedited.



What are the implications of this case for What are the implications of this case for new media?new media?

Is the distinction between active and Is the distinction between active and passive solicitation of content clear?passive solicitation of content clear?


Doe v. Friendfinder Network

Which Court?Which Court?

Who’s the plaintiff?Who’s the plaintiff?

Who’s the defendant?Who’s the defendant?

What are they fightin’ about?What are they fightin’ about?

What is the Court asked to decide?What is the Court asked to decide?



Court = USDC – District of New HampshireCourt = USDC – District of New Hampshire

Plaintiff = Jane Doe?????Plaintiff = Jane Doe?????

Defendant = Friendfinder NetworkDefendant = Friendfinder Network

They’re fighting about an allegedly false and They’re fighting about an allegedly false and unauthorized personal adunauthorized personal ad

The Court must decide if the the complaint The Court must decide if the the complaint should be dismissed under Section 230 of the should be dismissed under Section 230 of the CDA.CDA.



What are plaintiff’s Claims?What are plaintiff’s Claims? Invasion of property/IP Rights Defamation Intentional/Negligent/ Reckless conduct Intentional infliction of emotional distress Violation of NH Consumer Protection Act False designations under Lanham Act Willful and Wanton Conduct



What claims survive the motion to dismiss What claims survive the motion to dismiss and why?and why?



Right of publicity claim – not immune from Right of publicity claim – not immune from suit under Section 230 of CDA.suit under Section 230 of CDA.

False designation of origin under Section False designation of origin under Section 43 of Lanham Act – false or misleading 43 of Lanham Act – false or misleading endorsement. Need not be a celebrity.endorsement. Need not be a celebrity.


Quotes of the day

““The right to be let alone is indeed the The right to be let alone is indeed the beginning of all freedom.”beginning of all freedom.”

Justice William O. DouglasJustice William O. Douglas

““Even the smallest intrusion into private Even the smallest intrusion into private space by the unwanted gaze causes space by the unwanted gaze causes damage, because the injury caused by damage, because the injury caused by seeing cannot be measured.”seeing cannot be measured.”

Hezzek Re’iyyah, Encyclopedia TalmuditHezzek Re’iyyah, Encyclopedia Talmudit

tort liability in new media steve baron april 2, 2009

Documents

contdmandell menkes

user generated content

tort liability

information content

federal fair housing

new media ugc

exceptionswhen liability

publishers face