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Beware your potential liability for postings

14.02.2006
Advances in technology have allowed us to do more with the Internet than ever before, but along with this new freedom of communication comes the very real possibility of violating the rights of individuals who are discussed, pictured or otherwise identified on the Internet. The fact that the Internet is so accessible increases the potential for abusive communication and resulting damage to a person's reputation or other rights. Individuals using Internet technologies to broadcast their or others' comments, ideas, beliefs and thoughts need to take their role as publishers seriously and understand the legal landscape in which they act.

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.