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Avoiding Liability for Your Web Sites

Allowing visitors to post messages in one's Web site has become increasingly popular. However, recent cases have shown that doing so may subject the Web-site owner to liability for contributory copyright infringement or defamation. Although the cases discussed below did not involve Web sites, the reasoning very likely applies to them as well.

In Religious Technology Center v. Netcom On-Line Communication Services, Inc. (907 F. Supp. 1361, N. Dist. Cal. 1995) the Court held that Netcom might be liable for contributory copyright infringement because of an infringing posting made by a BBS user to a newsgroup through Netcom. The post was on Netcom's computer for only 11 days, but Netcom had taken no action during that period after the plaintiff told Netcom that the post was infringing.

The message is that if you are informed that a post is infringing, the safest course of action is to remove the post immediately. What if you do not want to remove the post? The Court did admit that there is no liability where one "cannot reasonably verify a claim of infringement, either because of a possible fair use defense, the lack of copyright notices on the copies, or the copyright holder's failure to provide the necessary documentation." However, in Netcom's case, the Court allowed the lawsuit to proceed to determine if Netcom had acted reasonably. In other words, if you decide to leave the post because you believe one of these defenses applies, you may well have to prove that your decision was reasonable.

In Stratton Oakmont, Inc. v. Prodigy Services Co.(1995 N.Y. Misc. LEXIS 229) the Court held that Prodigy was liable as a "publisher" for a defamatory statement posted by a user because Prodigy exercised editorial control over its bulletin boards by editing posts for "offensiveness and bad taste." However, the Court also found that bulletin-board operators who did not edit their boards would not be liable for defamatory postings made by their users.

Clearly, the safest course of action is to not edit your bulletin boards or Web sites at all (except, of course, to remove any post that you have been told is infringing). Unfortunately, this means that you have to leave scurrilous material alone. You should also seriously consider placing a notice on your bulletin board or Web site (assuming you allow others to post there) stating that the area is not edited for content.

One potential problem is that the new Communications Decency Act (47 U.S.C. 223) requires a bulletin-board or Web-site operator to remove any communication that is obscene or indecent or depicts or describes sexual or excretory organs activities or organs that are patently offensive. However, it also contains a clause stating that no cause of action may be brought for any activity that the person takes in good faith to comply with the Act. Although this area of law is unsettled, probably this means that you can remove posts violating the Communications Decency Act--but no others--without becoming liable for the content of other messages. In fact, the Act provides that "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." Arguably, this overrules the Stratton Oakmont, Inc. v. Prodigy Services Co. decision. However, this provision--which may be limited to "protection for 'Good Samaritan' blocking and screening of offensive material"--has not yet been interpreted by the courts, and it is not clear how much protection it will provide. Editing for other reasons--e.g., because of disagreement with the author's point of view--might bring classification as a "publisher" again.