Liability & Legality

**TWD** · 10-06-2010, 07:34 PM

It is also my understanding that an electronic medium like an internet forum is treated as a "distributor" rather than a "publisher" of information in most circumstances. Therefore as a "distributor" the owner of a forum site is not liable for any libelous comments posted on the forum, any more than a newspaper kiosk owner is responsible for selling newspapers containing libelous information.

I think this distinction could be muddied somewhat if the owner purports to edit or approve the contents of forum posts before appearing online.
In this case it begins to look a lot more like "publishing" than "distribution".

Overall though if I owned a forum that an anonymous poster used to make potentially libelous comments, would I be free of liability if I clearly posted the following terms of service on the site:

1) Posts by users of the site are not edited or scrutinized before appearing online
2) The forum owner does not purport to vouch for the authenticity or veracity of any statements within the forum.
3) All parties who feel aggrieved by any statements within the forum have free opportunities to provide a rebuttal to those statements within the forum
4) Parties who feel aggrieved by statements within the forum are also free to contact the webmaster directly and provide justification as to why they believe content to be libelous. If circumstances warrant, steps will be taken to removing the offending material expeditiously.

It seems like the United States has strong legislation to protect libel actions against website owners.

Quote:

Section 230 of the Communications Decency Act of 1996

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:

The defendant must be a "provider or user" of an "interactive computer service."
The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

Wikipedia http://en.wikipedia.org/wiki/Section...ns_Decency_Act

An interactive computer service is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.” Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. Wash. 2009)

Also the United States has recently enacted laws against "Libel Tourism"

Quote:

The Free Speech Protection Act of 2008 and 2009 were both bills aimed at addressing libel tourism by barring U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. Both of these bills were superseded by the SPEECH Act of 2010 which was passed unanimously in both the House of Representatives and the Senate before being signed by US President Barack Obama on August 10, 2010.

Wikipedia http://en.wikipedia.org/wiki/Libel_tourism

**Attorney Jaffe** · 10-07-2010, 04:27 PM

Immunity Under Section 230 of the Communications Decency Act – Your Web Site’s Safe Harbor

In 1996 the U.S. Congress passed the Communications Decency Act (CDA) to regulate pornography on the Internet. An amendment to the act, called Section 230, was added in committee and passed as part of the act. Much of the CDA has been overturned since it was passed in 1996, however, Section 230 has become landmark legislation which the courts have liberally construed and upheld.

Section 230 is entitled, “Protection for “Good Samaritan” blocking and screening of offensive material” and provides that the operator of a web site is not liable for the postings of others on their sites – in effect granting immunity from any civil action. Even if the web site performs traditional editorial functions such as editing, deleting or choosing which posts are presented on the web site it is not liable for the statements of others. Caution: You can go too far; and if you are aiding and abetting the defamation you can be held liable.

Furthermore, the courts have liberally construed Section 230 and expanded the safe harbor Immunity beyond defamation to most tort causes of action. Today Section 230 of the CDA can be used as a defense to almost any tort action with a good chance of success. However, Section 230 specifically excludes the immunity for criminal prosecutions, intellectually property law, state law, or the Communications Privacy Law.

You need do nothing to create your safe harbor, the immunity is granted by statute. However, beware of invalidating your Immunity by putting promises in your Terms of Service which could override Section 230. For instance, if you had a term which provided for putting a posting in suspension while you conducted an investigation, and you did nothing; while Section 230 would grant you immunity on any tort claim, you would not have immunity from a breach of contract claim.

Basically, Section 230 of the Communications Decency Act grants you immunity for the tortuous acts of others committed on your web site. This is good news for website operators who host blogs, forums, social networking, etc. on their sites.

Should you receive a complaint about defamation appearing on your site you should contact your attorney immediately, remind him about the CDA Safe Harbor, have your attorney answer the letter and follow his instructions regarding how to handle the offending material.

**dWhite** · 10-07-2010, 04:29 PM

Most forum software have a registration agreement that helps protect the owner of the site and any staff from legal issues pertaining to people posting such crap.

Take the SMF registration agreement for example:

http://www.simplemachines.org/commun...ction=register

Quote:

You agree, through your use of this forum, that you will not post any material which is false, defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, adult material, or otherwise in violation of any International or United States Federal law. You also agree not to post any copyrighted material unless you own the copyright or you have written consent from the owner of the copyrighted material. Spam, flooding, advertisements, chain letters, pyramid schemes, and solicitations are also forbidden on this forum.

Note that it is impossible for the staff or the owners of this forum to confirm the validity of posts. Please remember that we do not actively monitor the posted messages, and as such, are not responsible for the content contained within. We do not warrant the accuracy, completeness, or usefulness of any information presented. The posted messages express the views of the author, and not necessarily the views of this forum, its staff, its subsidiaries, or this forum's owner. Anyone who feels that a posted message is objectionable is encouraged to notify an administrator or moderator of this forum immediately. The staff and the owner of this forum reserve the right to remove objectionable content, within a reasonable time frame, if they determine that removal is necessary. This is a manual process, however, please realize that they may not be able to remove or edit particular messages immediately. This policy applies to member profile information as well.

You remain solely responsible for the content of your posted messages. Furthermore, you agree to indemnify and hold harmless the owners of this forum, any related websites to this forum, its staff, and its subsidiaries. The owners of this forum also reserve the right to reveal your identity (or any other related information collected on this service) in the event of a formal complaint or legal action arising from any situation caused by your use of this forum.

You have the ability, as you register, to choose your username. We advise that you keep the name appropriate. With this user account you are about to register, you agree to never give your password out to another person except an administrator, for your protection and for validity reasons. You also agree to NEVER use another person's account for any reason. We also HIGHLY recommend you use a complex and unique password for your account, to prevent account theft.

After you register and login to this forum, you will be able to fill out a detailed profile. It is your responsibility to present clean and accurate information. Any information the forum owner or staff determines to be inaccurate or vulgar in nature will be removed, with or without prior notice. Appropriate sanctions may be applicable.

Please note that with each post, your IP address is recorded, in the event that you need to be banned from this forum or your ISP contacted. This will only happen in the event of a major violation of this agreement.

Also note that the software places a cookie, a text file containing bits of information (such as your username and password), in your browser's cache. This is ONLY used to keep you logged in/out. The software does not collect or send any other form of information to your computer.