Just when you thought it was safe to put your foot into the Internet waters, you start reading troublesome articles about potential risks and liabilities. What is a savvy business owner to do? Certainly, there are risks associated with online content, but the good news is that Congress has largely eliminated liabilities for third-party content posted on a website. Section 230 of the CDA, which is famous in Internet law circles, is short and sweet. Note that this provision is limited to protection against state law claims. The principal federal law risk would be a claim for copyright infringement based on something posted on your website by a third party. It provides a safe harbor from copyright liability if certain conditions are met. For a discussion of the DMCA, click. It is clear that it includes Internet service providers, like America Online, and hosts of online forums, chat rooms, and other websites where third-party content can be posted, provided the content is posted by the third party rather than the host. Active Versus Passive Hosting Congress passed the CDA specifically to overrule a line of cases that had held website owners liable for content posted by third parties where the website owner screened, edited, or otherwise actively monitored content posted on the site. Congress overruled these cases and it is now clear that hosts are free to monitor content, and to take down problematic postings without risking any liabilities based upon such active involvement. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material even where the self-policing is unsuccessful or not even attempted. In general, there is no such liability as long as the host takes advantage of the safe harbor provided by the CDA. Website Terms and Conditions Although the CDA protects against most liabilities for third-party content posted on a website, it is still a good idea to have website terms and conditions that protect the owner of the site by making posters warrant their ownership of posted content, that it is not defamatory and does not violate the privacy, publicity, or other rights of the individual or company and requires them to hold the website owner harmless from claims and indemnifying it from losses. The terms and conditions should also protect the owner's own content from use by third parties, particularly where not protected by copyright laws. For a discussion of this topic, see Website Terms and Conditions Held Applicable to Content Copied by Robot or Spider, found. There's nothing in the CDA that prevents suing the third party who created and posted the content. For discussion of a potpourri of legal issues associated with running a business on the Internet, see E-Commerce Developments: Across E-Commerce Law on Horseback, found. For questions about this topic, please contact Jere Webb or your Stoel Rives attorney. No attorney-client relationship attaches as a result of any exchange of information, including emails that are sent to the Firm. Please do not send us confidential information or sensitive materials. Unsolicited information that you send to us will not be regarded as confidential unless we have agreed to represent you. If you send this email, you confirm that you have read and understand this notice.
