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Decision bolsters online-publisher immunity

Advertisement that included dancer's image without permission is not grounds for lawsuit against Web site that published it, judge says.

Web site owners can rest a little easier following a little-noticed court decision last month that bolsters legal protections against lawsuits arising from the activities of their advertisers.

Ramey v. Darkside involved a Washington, D.C., area dancer who sued a Web site publisher after one if its advertisers used a photo of her without her permission. In a May 17 ruling, U.S. District Judge Gladys Kessler rejected the bid in a decision seen as a statement that online publishers aren't responsible for the content of advertisements created by others.

That's welcome news for Web site owners who have been in legal limbo over so-called "third party" liability, thanks to a string of conflicting legal decisions over the issue in recent months. One legal scholar hailed last month's decision as a moment of clarity in an increasingly confusing area of the law and a boon for the online-advertising industry.

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"This case should help search engines and Web sites avoid liability for the ads they run, even if the Web sites help the advertiser develop the advertising content and decide where to place it," said Eric Goldman, an assistant professor at Marquette University Law School. "This is a good one for Google, Overture, eBay, Amazon and everyone else who runs third-party ads."

At stake are the limits of special immunity, granted under the 1996 Communications Decency Act to Web sites for their subscribers' illegal activities.

Section 230 of the CDA has proved to be a crucial defense for Internet service providers and Web sites sued over subscribers' postings. In high-profile early test cases of this section, such as Zeran v. America Online and Blumenthal v. Drudge, the courts carved out broad immunity for Internet companies that let customers publish material.

But during the past year, the courts have begun to waver on the limits of Section 230 immunity. In a case brought by "Star Trek" actress Christianne Carafano, whose stage name is Chase Masterson, a court ruled that a Web site would lose its immunity if it helped create the disputed content through an automated questionnaire. That reasoning last year was overruled on appeal.

Subsequent decisions have further muddied the Section 230 waters. In Doe v. GTE, the 7th Circuit Court of Appeals in October did not restrict immunity as a matter of law but rather questioned the logic of the Zeran case and said Section 230 was open to broader interpretation.

In January, a California appellate court held in Barrett v. Rosenthal that a publisher's knowledge of defamatory content--in that case a forwarded e-mail--weakened its Section 230 immunity. That decision is now being appealed to the California Supreme Court.

Last month's case pitted Elizabeth Ramey, a nude dancer, against Darkside Productions, which publishes an online advertising guide called the "Eros Guide." Ramey accused Darkside of publishing third-party advertisements featuring her likeness for an adult entertainment service that had not gotten her authorization.

In Ramey v. Darkside, Kessler batted down the nude dancer's argument that Darkside Entertainment lost its Section 230 immunity because it made "minor alterations" of the advertisement in question, for example, putting its own Web address and a watermark on the images.

"Because defendant did no more than select and make minor alterations to (the) advertisement, it cannot, as a matter of law, be considered the content provider of the advertisement for purposes of Section 230," Kessler wrote in her decision.