Courts chip away at Web sites' decade-old legal shield

For more than a decade, Web site operators have enjoyed a broad legal shield against lawsuits filed over material posted by their users, which has let user-driven sites like YouTube and MySpace.com flourish.

But a pair of recent rulings by federal district judges have chipped away at that protective shield. If those decisions are upheld on appeal, and if more judges follow suit, Web site operators and Internet service providers may find themselves compelled to police what their users post--or face the unsettling prospect of being held liable for the contents.

"We fear these cases might inspire a wave of new lawsuits that, even if ultimately dismissed, will create a chilling effect," said Sophia Cope, an attorney for the Center for Democracy and Technology, which has filed briefs supporting broad immunity and gets some financial support from a number of prominent Internet companies. "Many small start-up Web services might find that the costs of defending such suits--in terms of time and legal fees--are too much to bear."

The legal shield comes from a portion of the 1996 Telecommunications Act, which generally says Web sites aren't liable for their users' posts or other content they provide. That has immunized the dot-com industry from a wide range of civil lawsuits spanning everything from defamation to--in a case decided last year involving MySpace--lawsuits alleging that better child safety and age verification measures should have been put into place. (Individual "content providers" who post defamatory comments, upload inflammatory videos of their own creation, and the like, are still vulnerable to lawsuits.)

In early test cases such as Zeran v. AOL, courts have interpreted Section 230 of the Telecommunications Act to supply fairly broad immunity for Web hosts. That trend has largely continued in recent years, with judges finding, for example, that dating site Matchmaker.com was immune from a lawsuit involving an unknown prankster's phony profile impersonating actress Christianne Carafano, and that Craigslist wasn't responsible for allegedly discriminatory housing ads posted by users of the online classifieds site.

Perhaps ironically, the recent decisions that seem to be taking a narrower interpretation of Section 230 also stem from disputes over online dating and roommate matching.

'Bogus' FriendFinder profiles
The first of the two cases pits an anonymous New Hampshire woman against the FriendFinder Network, an operator of dating sites--some sexually explicit--including AdultFriendFinder.com and LesbianPersonals.com. Jane Doe accused FriendFinder of causing her various sorts of harm by allowing "bogus" sexually explicit profiles that could be "reasonably identified" as portraying herself to be published without her knowledge by someone else to its Web properties, as well as in snippets in FriendFinder advertisements on search engines and other third-party Web sites.

A recent ruling by U.S. District Judge Joseph LaPlante in New Hampshire federal court on March 27 partially sided with FriendFinder, ruling against some of Jane Doe's claims against the company.

But LaPlante also differed from previous opinions in one important area. He refused to dismiss Jane Doe's argument that FriendFinder's republication of her profile invaded her "intellectual-property rights" under New Hampshire law. She claimed to be concerned about violations to her "right of publicity," which says an individual generally has the right to control how his name, image, and likeness is used commercially--and the court ruled that Doe's argument fell into the category of intellectual-property law.

That point is crucial because, when writing Section 230, Congress explicitly said its shield does not extend to lawsuits "pertaining to intellectual property." Until Judge LaPlante's order, courts had viewed that only as applying to federal claims mostly about copyrights and trademarks--and not state lawsuits over more amorphous publicity rights.

The reasons this could create headaches for Web publishers are twofold, said Eric Goldman, director of the High Tech Law Institute at Santa Clara University. For one thing, laws governing "rights of publicity" are not uniform across the states, which means e-commerce companies would be forced to align their operations with the most restrictive state's law.

And unlike in copyright or trademark cases, where there are fairly well-established rules governing how Web sites are supposed to respond to such infractions posted by third parties, "we don't know what rules are; we have no good case law" on rights of publicity, Goldman added.

Others fear that the ruling could prompt legal mischief. For instance, courts have ruled in the past that Web publishers can be immunized for posts that tarnish someone's reputation--a practice typically covered by defamation laws. CDT's Cope said she's concerned the intellectual-property exception will "swallow the rule," inspiring other courts to allow plaintiffs to slip in defamation claims and others under the guise of "intellectual property" claims.

Judge LaPlante's ruling, however, is not the end of the case. The court can now hear evidence on whether to agree with Jane Doe's remaining allegations. Judges aren't exactly known for changing their minds, once they've made a decision. But Ira Rothken, the lead attorney defending FriendFinder in the case, said he believes any subsequent appeal to the 1st Circuit would result in a finding that state-level intellectual-property laws, too, are subject to the Section 230 exemption.

Roommates.com's matchmaking woes
The other Section 230 saga concerns a Web site called Roommates.com, which allows users to set up profiles and seek roommate matches in thousands of U.S. cities. One of the ways the site attempts to spark matches is through requiring members to complete questionnaires that stock their profiles with a number of personal details, including their gender, sexual orientation, and whether they have children, according to court documents.

Those personal queries drew a lawsuit from the Fair Housing Councils of the San Fernando Valley and San Diego, which claimed they violated the federal Fair Housing Act and California state housing discrimination laws. A federal district sided with Roommates.com's argument that Section 230 immunized it from such claims, but a divided 9th Circuit Court of Appeals recently disagreed, and that's why implications for other Web publishers could arise. (Here's a PDF of that 54-page opinion.)

The majority, led by Chief Judge Alex Kozinski, ruled that Roommates was not covered by Section 230's shield because it helped "to develop unlawful content" through its requisite questionnaire, which featured preprogrammed drop-down menus containing various possible answers for the allegedly offending questions. The judges also said that because Roommates.com engineered its site in a way that allows site users to search for and sort roommate listings based on those criteria, it's an "information content provider," which, by law, isn't immune to Section 230.

"If such questions are unlawful when posed face-to-face or by telephone, they don't magically become lawful when asked electronically online," Kozinski wrote. "The Communications Decency Act was not meant to create a lawless no man's land on the Internet." (The CDA, the "antiporn" sections of which were struck down by the U.S. Supreme Court on First Amendment grounds, was included in the 1996 Telecommunications Act.)

By contrast, the same judges found that it was no problem for Roommates to ask users to write an open-ended summary of what they're seeking in a roommate, since that request was "neutral."

If that way of thinking is ultimately applied more broadly, the millions of Web sites that routinely use prompts and drop-down menus to solicit, publish, and sort information from their users could be forced to change their practices or face new legal liability, the three dissenting judges argued.

"The majority's unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned," Circuit Judge M. Margaret McKeown wrote for the dissent. "Instead of the 'robust' immunity envisioned by Congress, interactive service providers are left scratching their heads and wondering where immunity ends and liability begins."

This case was closely watched, leading Amazon.com, Google, the Electronic Frontier Foundation, the American Civil Liberties Union, and a number of news organizations to file briefs with the court in support of Roommates. They argued that a decision in favor of the fair-housing groups would choke innovative new Web services and stifle free speech in online forums--particularly the "sortable" user ratings and feedback at sites like eBay and Amazon.com, and "tagging" features at sites like YouTube and Flickr.

One attorney who analyzed the case said the majority's stance, which clearly took aim at business practices considered unfriendly to fair-housing laws, said the case may represent a narrowing of the law but could actually be good for Web site operators who value Section 230.

"Imagine, shall we say, a 'progressive' congressman standing up in Washington and saying, hey, with this Section 230 scheme, we give a license to Web site operators to run hate mills, build up bastions of bigotry, and sanctuaries for racism," Evan Brown, a Chicago-based attorney who focuses on Internet law, wrote in a recent blog post. "In short, a Roommates.com victory could have given a battalion's worth of ammunition--in the form of emotional, irrational, rhetoric--to Section 230's critics. Some in Congress would have called for its head."