by Jonathan T. Howe, Esq. | August 19, 2008


In the beginning, cyberspace gave every appearance of being free of any restrictions whatsoever — standard rule of law did not seem to apply. But the law is catching up.

With the rise in social networking sites like Facebook and MySpace, more and more organizations are offering opportunities for their members to gather online, and the growing case law in this area is setting precedents affecting how you should operate personally and professionally on these networks. Many people and organizations monitor such websites and are unabashed about taking both legal and private action to go after those who misuse the sites. At issue is everything from free speech to the invasion of privacy.

While a social networking site allows users to publish “content,” for the most part, the site provider is not considered a “content publisher,” since it is not creating the information; it is just a gathering place.

However, recent decisions indicate clearly that, in some instances, both the user and the provider could be content publishers. As such, they might be held legally responsible for infractions such as defamation, copyright infringement and the like.

For instance, a recent decision by the 9th U.S. Circuit Court of Appeals found a website was a content publisher and therefore liable for information posted. Users filling out their profiles were asked to answer questions created by the site’s owners; the answers to those questions helped the website filter the profiles. That action, the court said, turned the owner into a publisher. The channeling of information, edited and disseminated by the site provider, led to liability.

Parts of two acts passed by Congress protect site owners from liability for some user-supplied content. If a commenter posts copyrighted material on a site, Section 512(c) of the Digital Millennium Copyright Act allows website owners to avoid copyright infringement by providing a mechanism for the material’s owner to request the removal of his work. Section 230 of the Communications Decency Act immunizes website providers from liability resulting from the publication of information provided by a third party.  

As we forge ahead with our online policies and practices, we can apply standard contract guidelines.

• When conducting business online, always read the terms and conditions before clicking “accept.”

• When posting comments on a social network, expect no privacy and avoid commentary related to any individual’s character or ability. Once posted, opinions remain ever-floating on a giant web that has an incredible capacity for remembering.

• As the provider, be certain your website’s terms and conditions speak to inappropriate comments, and be prepared to monitor all content and to remove anything objectionable.

In order to be protected to the fullest extent possible, website providers should make it demonstrably clear that the site is not a publisher and assumes no liability for material posted.

Users should be required to indicate that they accept your terms before they are allowed to enter the site. Included in this, of course, should be an acknowledgment that the website provider is not responsible for content and that applicants share their comments at their own risk and responsibility.

While you might think there is a degree of anonymity for comments made online, let me assure you, there are several ways to find out your identity, including the use of forensic experts.

Jonathan T. Howe, Esq., is a senior partner in the Chicago, St. Louis and Washington, D.C., law firm of Howe & Hutton Ltd., which specializes in meetings, travel and hospitality law. Legal questions can be e-mailed to him at [email protected].