tort liability in new media

Tort Liability in New Media

Steve BaronSteve Baron

Nov. 2, 2010Nov. 2, 2010

MANDELL MENKES LLC 2

Content is King – But it can get you in trouble.

New media allows users and publishers to New media allows users and publishers to interact and share content.interact and share content.

But, who is legally responsible and for But, who is legally responsible and for what content?what content?


Where Can You Find User Generated Content (UGC)?

UGC has been around for a long time.UGC has been around for a long time. Examples: Pillsbury Bake-Off contests,

op-ed page of newspaper, etc.

But, new media UGC is widely But, new media UGC is widely disseminated in various media outlets and disseminated in various media outlets and does not typically receive editorial review.does not typically receive editorial review.


What Tort Liability Can Publishers Face With User Generated Content? DefamationDefamation

ObscenityObscenity

Right of Publicity/Right of PrivacyRight of Publicity/Right of Privacy

Infliction of Emotional DistressInfliction of Emotional Distress

Civil Rights (e.g., Fair Housing Law)Civil Rights (e.g., Fair Housing Law)


What Protections Exist to Shield Internet Publishers From Tort Liability?

Section 230 of the Communications Section 230 of the Communications Decency Act (CDA)Decency Act (CDA) “No provider or user of an interactive

computer service (ICS) shall be treated as the publisher or speaker of any information provided by another information content provider.”

47 U.S.C. § 230(c)(1).


What Protections Exist to Shield Publishers From Liability? (cont’d)

Section 230 encourages (but does not require) Section 230 encourages (but does not require) websites to filter or review submissions. “websites to filter or review submissions. “NoNo providerprovider or user of an interactive computer or user of an interactive computer service service shall be held liableshall be held liable on account of any on account of any action voluntarily taken action voluntarily taken in good faithin good faith to restrict to restrict access to or availability of material that the access to or availability of material that the provider or user considers to be provider or user considers to be obscene, lewd, obscene, lewd, lascivious, filthy, excessively violent, lascivious, filthy, excessively violent, harassing, or otherwise objectionableharassing, or otherwise objectionable, , whether or not such material is constitutionally whether or not such material is constitutionally protected…” 47 U.S.C. § 230 (c)(2).protected…” 47 U.S.C. § 230 (c)(2).


Exceptions/When Liability May ApplyExceptions/When Liability May Apply:: No immunity for violation of federal criminal

laws, Intellectual property violations, Right of publicity claims (in some jurisdictions),

and Applicability of the Electronic Communications

Privacy Act of 1986 or similar state laws.

What Protections Exist to Shield Publishers From Liability? (cont’d)


Fair Housing Council of San Fernando Valley v. Roommates.Com

Which Court?Which Court?

Who’s the plaintiff?Who’s the plaintiff?

Who’s the defendant?Who’s the defendant?

What are they fightin’ about?What are they fightin’ about?

What is the Court asked to decide?What is the Court asked to decide?



Court = Ninth CircuitCourt = Ninth Circuit

Plaintiff = Fair Housing Council of SFPlaintiff = Fair Housing Council of SF

Defendant = Roommates.comDefendant = Roommates.com

They are fightin’ about whether Roomates.com They are fightin’ about whether Roomates.com violated federal fair housing law by allowing violated federal fair housing law by allowing users to screen roommates.users to screen roommates.

Court is asked to decide whether Roommats.com Court is asked to decide whether Roommats.com is immune under Section 230 of CDA.is immune under Section 230 of CDA.



Defendant operated website to match Defendant operated website to match prospective renters with people looking for a prospective renters with people looking for a roommate. In order to view the site, users roommate. In order to view the site, users must submit information for their profiles, must submit information for their profiles, including gender, sexual orientation, and including gender, sexual orientation, and whether they live with children. Plaintiffs sued, whether they live with children. Plaintiffs sued, arguing that defendant’s business violated the arguing that defendant’s business violated the federal Fair Housing Act and California’s federal Fair Housing Act and California’s housing discrimination laws. housing discrimination laws.


Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (cont’d)


Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC(cont’d)

Court heldCourt held: : Roommates.com was not immune from liability.

Defendant became a content provider when it posted a questionnaire and required users to answer as a condition of doing business. Questions that are unlawful to ask in face-to-face interaction do not “magically” become lawful when posed online. However, “Additional Comments” section, which allowed users to write a short essay about what they were looking for in a roommate, received § 230 immunity because it was passively displayed by defendant and unedited.



What are the implications of this case for What are the implications of this case for new media?new media?

Is the distinction between active and Is the distinction between active and passive solicitation of content clear?passive solicitation of content clear?


Stayart v. Yahoo! What’s a name worth?

Which court?Which court?

Who’s suing whom?Who’s suing whom?

Why?Why?

What are the issues on appeal?What are the issues on appeal?

Who wins and why?Who wins and why?


Stayart v. Yahoo! What’s a name worth?

Seventh Circuit Court of AppealsSeventh Circuit Court of Appeals Beverly Stayart sues Yahoo! and Friendfinder.comBeverly Stayart sues Yahoo! and Friendfinder.com Web searches linked her name to sites and ads she found Web searches linked her name to sites and ads she found

“shameful”. (Endorsing pornography and online “shameful”. (Endorsing pornography and online pharmaceuticals.) She sues for trademark infringement and pharmaceuticals.) She sues for trademark infringement and state law claims.state law claims.

Does Stayart have “standing” to sue in federal court for Does Stayart have “standing” to sue in federal court for trademark infringement.trademark infringement.

Yahoo! wins on appeal. Stayart lacks standing to sue for Yahoo! wins on appeal. Stayart lacks standing to sue for trademark infringement because she lacks a “commercial trademark infringement because she lacks a “commercial interest” in her name. Also, the District Court did not err in interest” in her name. Also, the District Court did not err in allowing her to amend her complaint.allowing her to amend her complaint.


Maxon v. Ottawa Publishing Company

At what price anonymity?

What court?What court?

Who’s suing whom?Who’s suing whom?

Why?Why?

What are the issues on appeal?What are the issues on appeal?

Who wins and why?Who wins and why?


Maxon v. Ottawa Publishing Company

At what price anonymity?

Illinois Appellate Court (3Illinois Appellate Court (3rdrd Dist.) Dist.)

Donald and Janet Maxon sue Ottawa Publishing, publisher of Donald and Janet Maxon sue Ottawa Publishing, publisher of The Times.The Times.

The Maxons want to unmask the identity of certain anonymous The Maxons want to unmask the identity of certain anonymous posters on Ottawa’s web site.posters on Ottawa’s web site.

What is the appropriate legal test to apply to a petition to identify What is the appropriate legal test to apply to a petition to identify anonymous speakers.anonymous speakers.

The Maxons win the appeal because the appellate court finds The Maxons win the appeal because the appellate court finds that the trial court applied an incorrect test and also finds that that the trial court applied an incorrect test and also finds that the Maxons stated a claim for defamation. So the Maxons stated a claim for defamation. So The Times The Times must must identify the anonymous posters.identify the anonymous posters.


Quotes of the day

““The right to be let alone is indeed the The right to be let alone is indeed the beginning of all freedom.”beginning of all freedom.”

Justice William O. DouglasJustice William O. Douglas

““Even the smallest intrusion into private Even the smallest intrusion into private space by the unwanted gaze causes space by the unwanted gaze causes damage, because the injury caused by damage, because the injury caused by seeing cannot be measured.”seeing cannot be measured.”

Hezzek Re’iyyah, Encyclopedia TalmuditHezzek Re’iyyah, Encyclopedia Talmudit

tort liability in new media

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