Any online operation should periodically assess its legal exposure to better calibrate its contractual, technological, insurance, compliance and other liability minimizing measures. The following is a multidimensional checklist in plain English designed to help these operations assess their exposure by identifying the major sources of liability.
Online Platform Legal Audit Checklist
1) Is there defamatory content on the platform?
A statement is generally defamatory when it is: 1) false, 2) published or made to a third party, and 3) injures the reputation of a third party. Defamation is not always the result of a direct statement and can instead be inferred or insinuated, while a joke or statement of opinion may be the basis for defamation, if it is not clear that the statement was in fact meant to be taken as a joke or opinion. Generally, only statements that are made as facts that are untrue can be defamatory, whereas opinions or the truth generally cannot.
2) Does the platform infringe upon anyone’s “Right of Publicity”?
Generally, everyone has the right to control the use of one’s name, nickname, voice, picture, likeness, performance style, signature phrase and other identifying characteristics. This is often referred to as the “right of publicity”. Many states allow one to generally prevent the unauthorized commercial exploitation of one’s identity. Hence, as a general matter, no one’s identity should be used for the platform’s commercial benefit (unless that person is being referred to for newsworthy or journalistic purposes) without that person’s written permission....
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