In recent months, people have filed lawsuits claiming that they were defamed, had their right to privacy invaded or were otherwise harmed by statements or other postings on the Internet. In these lawsuits, the plaintiffs, in addition to suing the source of the information, named other potentially responsible parties with deep pockets to pay any judgment. In the Internet context, these deep pockets included the Web hosts, Internet service providers and other forum-operating entities as additional defendants.
This created a potentially large problem for entities doing business on, or related to, the Internet. The ease of communicating via the Internet, its geographic scope and the permanency of items on the Internet increased the possibility for these lawsuits and made the potential damages rise exponentially because of the wide public distribution of the information.
A special law for the Internet
In 1996, Congress passed the Communications Decency Act, which included an "immunity" section for certain Internet-related entities in certain circumstances. This immunity was an effort to encourage the free flow of information on the Internet and encourage Web site hosts and other administrators to regulate the content of their Web sites, chat rooms, etc., to maintain certain standards of what is being posted and is accessible without the risk of liability for doing so. A majority of courts have interpreted the immunity broadly, covering "providers or users of an interactive computer service" (a group beyond Internet service providers) if they did not significantly contribute to the creation or development of the allegedly harmful material that is received electronically and posted on their Web sites.
Thus, an online newsletter and its individual editor/reporter were held immune from liability for defamation for publishing, without comment or editing, an anonymous e-mail that allegedly defamed an individual. The immunity has also been held applicable to chat room and mailing list operators, eBay Inc., Amazon.com Inc. and the "Drudge Report." The immunity has even been held applicable to an individual who reposted allegedly defamatory information that she received in an e-mail. The main issue in these cases is the extent to which the entity claiming immunity contributed to the creation of the posted information.
Recently, however, some courts have held that the immunity is not as broad as previously interpreted. Some courts have limited the immunity to situations in which the party claiming immunity monitored the material posted and had a system in place to prevent and/or take down offending postings. Other courts have constrained the immunity to situations in which the party claiming immunity acted as a "mere conduit" for the information and had no reason to know the information was being sent, let alone that it was defamatory.
What to do
Publishing on the Internet, whether via e-mail, in a chat room or on a Web site, creates serious responsibilities and significant potential liability. Although an immunity exists, it may be significantly constrained in the future, and its application to newly developed technology may be unclear. Based on the recent cases the court system has seen, as well as factors that are used for immunities in other laws, the following suggestions should be seriously considered:
-- Develop methods, consistent with your business model, for checking the accuracy of items posted, or that are posted by others, on your Web sites.
-- Create a method for users and viewers of your Web site to contact you about questionable, objectionable or allegedly false information or postings on your Web site.
-- Prepare an action plan to deal with user complaints about postings, including under what circumstances postings will be removed and how the poster can attempt to restore the posting.
-- Regularly review and monitor postings on your Web site, especially if you allow others to post comments directly without editing.
Finally, if you find yourself either being defamed or otherwise harmed by material on the Internet, or if you have been accused of doing so, you should immediately seek legal counsel regarding your rights and potential defenses to such claims.
-- Marshall Seeder is a member of the litigation group of Sachnoff & Weaver Ltd. focusing on business, intellectual property and transportation litigation. He can be reached at mseeder@sachnoff.com. Peter T. Berk is a member of the litigation group at Sachnoff & Weaver representing clients in online and off-line litigation and intellectual property matters. He can be reached at pberk@sachnoff.com.