A recent Fairfax County defamation case involving a consumer’s scathing postings against a contractor on Yelp and Angie’s List raises the issue as to who can be held liable for postings made by third parties.
Can the party who owns the website be liable? If a website owner lets people post content (photos, videos, ratings, comments, articles, etc.), does the owner need to be concerned about liability for infringing on intellectual property or other rights, such as defamation or privacy? In most situations the answer is no, however, there are some gray areas where website owners should take note, and they should put in place certain policies and procedures for addressing this issue.
In most situations involving third party postings, such as Yelp and Angie’s List, a federal law called the Communications Decency Act (CDA) affords the provider of interactive computer services, or what we commonly refer to as the website owner, immunity for third party postings. Congress enacted the CDA to ensure the free sharing of information and prevent stifling the exchange of information on the internet due to fears of potential liability.
When faced with this issue, the courts have consistently provided that the CDA affords immunity to website owners against suits seeking to hold the owner liable for third-party content. For this reason, website owners such as Yelp cannot be named as a party in a defamation suit, only the third party who posted the review can be held liable. The immunity applies to claims involving defamation, tortious interference with contracts, and breach of contract. In the majority of situations involving online postings, a provider cannot be held liable for third-party postings that consist of reviews.
However, when does the CDA not provide immunity to website owners? Are there circumstances when website owner can be liable for third-party postings? Specifically, the CDA does not apply to cases involving federal intellectual property claims. In those cases, website owners must turn to Federal law for a possible safe harbor and follow the specific procedures indicated.
What about cases not involving intellection property claims? Can a website owner be liable? The answer to this question is yes. When a website owner edits contents or filters the material or postings that are published, it will not have immunity. While the information may have originated with a third party, the website owner will be held liable. Specifically, for the immunity to apply, the courts conduct a three-part test consisting of:
Whether the Defendant is a website owner who provides access to multiple users on a computer server, such as Yelp, Angie’s list, etc.;
Whether the Defendant is responsible for the creation or development of the information provided on the Internet, this occurs where a party filters or edits posts; and
Whether the Plaintiff is seeking to treat the Defendant as the publisher of the third party posting.
The issue becomes less concrete when determining whether a state cause of action for privacy or publicity would fall under the intellectual property exemption. Many states, such as Virginia, provide for a private cause of action for the unauthorized use of name or picture of any person for advertising purposes without obtaining written consent. The majority of states, like Virginia, also provide for an award of punitive damages which can be significantly larger than any actual damages. The privacy claims most commonly involve websites where third parties sell items, such as Craigslist or eBay, and post pictures of individuals or use their names without permission (or in the case of a minor, without their parent’s permission). What happens in these cases and whether the CDA will apply is not clear. The Federal Circuit Courts have split on the issue of whether a state cause of action would fall under the CDA exemption and there is no 4th circuit case on this issue. Therefore, website owners must be cognizant of this issue.
So what should a website owner do in order to reduce liability?
All website owners should require all posters to confirm he or she has permission to use an image or information prior to posting. Website owners should be careful to not edit or filter posts. Additionally, while most cases will not involve a copyright issue, the policies established in the Digital Millennium Copyright Act (DMCA) provide a reasonable framework for website owners to follow.
Under the DMCA, website owners are provided a safe harbor when they do not have knowledge of the infringement; were unable to control the content; did not profit from the content; and acted promptly to remove the material after being notified of the possible infringement. While the DMCA provides very specific requirements for a notification to qualify as a proper notification, website owners should act promptly to remove or disable access to the posting upon receiving any notification that a party is making unauthorized use of a photo or name. The website owner should then contact the party who posted the information to notify them of the report, which allows that party to make a counter-notice that the material was removed or disabled as a result of a mistake or do nothing.
Rachelle E. Hill is an associate at Bean, Kinney & Korman, P.C. in Arlington, Virginia, practicing in litigation, with an emphasis on employment law and commercial litigation. She can be reached at 703.525.4000 or firstname.lastname@example.org.