Shrinking Immunity for Web hosts
Jane Doe v Friendfinder
Courts chip away at Web sites' decade-old legal shield
Posted by Anne Broache for C/Net News.com
For more than a decade, Web site operators have enjoyed a broad legal shield against lawsuits filed over material posted by their users, which has let user-driven sites like YouTube and MySpace.com flourish.
But a pair of recent rulings by federal district judges have chipped away at that protective shield. If those decisions are upheld on appeal, and if more judges follow suit, Web site operators and Internet service providers may find themselves compelled to police what their users post--or face the unsettling prospect of being held liable for the contents.
"We fear these cases might inspire a wave of new lawsuits that, even if ultimately dismissed, will create a chilling effect," said Sophia Cope, an attorney for the Center for Democracy and Technology, which has filed briefs supporting broad immunity and gets some financial support from a number of prominent Internet companies. "Many small start-up Web services might find that the costs of defending such suits--in terms of time and legal fees--are too much to bear."
The legal shield comes from a portion of the 1996 Telecommunications Act, which generally says Web sites aren't liable for their users' posts or other content they provide. That has immunized the dot-com industry from a wide range of civil lawsuits spanning everything from defamation to--in a case decided last year involving MySpace--lawsuits alleging that better child safety and age verification measures should have been put into place. (Individual "content providers" who post defamatory comments, upload inflammatory videos of their own creation, and the like, are still vulnerable to lawsuits.)
In early test cases such as Zeran v. AOL, courts have interpreted Section 230 of the Telecommunications Act to supply fairly broad immunity for Web hosts. That trend has largely continued in recent years, with judges finding, for example, that dating site Matchmaker.com was immune from a lawsuit involving an unknown prankster's phony profile impersonating actress Christianne Carafano, and that Craigslist wasn't responsible for allegedly discriminatory housing ads posted by users of the online classifieds site.
Perhaps ironically, the recent decisions that seem to be taking a narrower interpretation of Section 230 also stem from disputes over online dating and roommate matching.
'Bogus' FriendFinder profiles
The first of the two cases pits an anonymous New Hampshire woman against the FriendFinder Network, an operator of dating sites--some sexually explicit--including AdultFriendFinder.com and LesbianPersonals.com. Jane Doe accused FriendFinder of causing her various sorts of harm by allowing "bogus" sexually explicit profiles that could be "reasonably identified" as portraying herself to be published without her knowledge by someone else to its Web properties, as well as in snippets in FriendFinder advertisements on search engines and other third-party Web sites.
The current legal shield does not protect free speech and liberty. It protects profit and property. Nothing wrong with that goal, but lets be honest about it.
Sites that profit from user-generated content have been remiss in providing controls and features to allow people claim their own information. They have spent way more on tools to target advertising then they have to provide protection for privacy abuses. Worse, they have used the current laws as an excuse to do nothing.
Compounding the problem is their protection of the anonymous sources of UGC. In order to get the law's protection, sites should have some minumum standard of tracking, verification, and response to allow individuals to protect themselves against attack and abuse.
Those that seek to profit from the free exchange of ideas have a responsibility to provide tools for the protection of everyone's rights.
If I or my family are attacked, abused, discriminated against, and defamed, I will fight back. I would make no distinction between the attacker and the site that supports, hides, and defends that attacker. If that site does not provide me the tools for redress, then the courts and state houses will be used instead.
