Defamation immunity for website operators narrows

Website operators traditionally have relied on the Communications Decency Act to shield them from liability for user-generated content.

The April decision of the Ninth Circuit Court of Appeals in Fair Housing Council of San Fernando Valley v. Roommates.com significantly narrows this immunity. Over the weekend my friend and former law professor Lyrissa Lidsky alerted me to the case, noting that it

may spell doom for websites that solicit defamatory information (like Juicycampus.com, DontDateHimGirl.com and so forth). Basically the case limits Communications Decency Act immunity if the blog/website “solicits” or otherwise actively participates in generating illegal or defamatory content.

On Friday another federal court dismissed a suit against ConsumerAffairs.com, but it seems to me that any blogger who accepts comments from users “in direct response to [his or her] questions and prompts,” and profits from those comments, should take a close look at the Roommates.com case.*

For further details and musings, see Tom Just De-Friended the Ninth Circuit.

In unrelated defamation news, Jennifer Howard considers the “chilling effects of libel tourism” at the Chronicle of Higher Ed.
 

* An excerpt worth contemplating:

Carafano [a prior case limiting operator liability] differs from our case in at least one significant respect: The prankster in Carafano provided information that was not solicited by the operator of the website. The website sought information about the individual posting the information, not about unwitting third parties. Nothing in the questions the dating service asked suggested, encouraged or solicited posting the profile of another person, and the website’s policies prohibited altogether the posting of last names and contact information. Id. at 1121. While Carafano is written in broad terms, it must be read in light of its facts. Carafano provided CDA immunity for information posted by a third party that was not, in any sense, created or developed by the website operator — indeed, that was provided despite the website’s rules and policies. Id. We are not convinced that Carafano would control in a situation where defamatory, private or otherwise tortious or unlawful information was provided by users in direct response to questions and prompts from the operator of the website.

Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this website would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee. To post the information, the individual would be 5720 FAIR HOUSING COUNCIL v. ROOMMATE.COM invited to answer questions about the target’s name, addresses, phone numbers, social security number, credit cards, bank accounts, mother’s maiden name, sexual orientation,
drinking habits and the like. In addition, the website would encourage the poster to provide dirt on the victim, with instructions that the information need not be confirmed, but could be based on rumor, conjecture or fabrication.

It is not clear to us that the operator of this hypothetical website would be protected by the logic of Carafano. The date match website in Carafano had no involvement in the creation and development of the defamatory and private information; the hypothetical operator of harrassthem.com would.

By providing a forum designed to publish sensitive and defamatory information, and suggesting the type of information that might be disclosed to best harass and endanger the
targets, this website operator might well be held responsible for creating and developing the tortious information. Carafano did not consider whether the CDA protected such websites, and we do not read that opinion as granting CDA immunity to those who actively encourage, solicit and profit from the tortious and unlawful communications of others.


Comments are closed.