Tuesday, September 30, 2008

Are Websites Responsible for Defamation Posted by Their Users?

As a lawyer operating an internet law firm, I am often asked whether or not websites are responsible for the content posted by their users. This frequently arises in the context of defamation. A business or individual is horribly defamed on a site like Ripoffreport or Citysearch or Yelp and the defamatory post achieves a high rank in Google natural search results for that particular business or individual. As a result, said business or individual experiences horrible fallout in the form of public shame and loss of business.

The defamed party obviously has claims against the poster/author of the defamatory content. However, many defamed parties wish to also sue the website that provided the forum for the wrongdoer and broadcast the harmful defamation to the world.

The bad news is that the Communications Decency Act (CDA), signed by Bill Clinton in 1996, provides broad immunity to websites for content posted by their users in addition to other torts. Of course, this law was passed well before the web 2.0 revolution which birthed a bevy of websites granting users the ability to post content and collaborate in ways never previously contemplated. Bottom line is that in most situations, websites are not liable for the bad acts of their users, including defamation.

Recently, the Ninth Circuit has given victims of defamation a little hope and perhaps signaled a shift toward further website responsibility in policing its users. In Fair Housing Council of San Fernando Valley , et. al., v. Roommate.com, LLC, the Ninth Circuit held that the CDA would not provide immunity to Roommate.com for violations of the Fair Housing Act and other state laws. The reason the Court gave was that Roommate.com participated in the bad conduct of its users by providing drop down menus for its users to complete - these drop down menus were used by Roommate.com to commit discriminatory housing acts.

So, there is finally some caselaw on the books - applicable at least in the west coast states comprising the Ninth Circuit - which suggests that websites may be held liable for the defamatory comments of users if the website editorializes or embellishes or legitimizes its users' comments in any way. I believe a number of these business ratings websites, identified above, may be held liable for defamation committed by their users because most, if not all, legitimize their users' posts in the form of stars or smiley faces or other avatars and/or icons.

If you have questions regarding internet defamation and the Communications Decency Act, contact an experienced internet defamation attorney.