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.
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.
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.
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
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
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
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.
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.
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 firstname.lastname@example.org.