Intellectual Property Law

Interactive Websites and the Issue of Liability

By Martha L. Arias

Interactive websites are the new way to get information and participate in developing information.   Internet users not only surf the web looking for the desired information but they are now participating in the development of that information either by providing comments, or uploading or sharing data (e.g. YouTube, blogs, Craigslist, etc.); Hence, what is the liability faced by that interactive website?  Is the interactive computer service provider liable for content provided by its users? This article briefly explains when and how interactive computer service providers may be liable for third party content.

 The United States Communication Decency Act ("CDA") differentiates between Interactive Computer Service Provider ("Service provider") and Information Content Provider ("Content provider").  47 USC § 230 (f)(2) & (3). This distinction is crucial to determine the liability a website could face. 

The CDA defines an interactive computer service provider (or service provider) as any information service, system, or access software provider that enables or provides access to multiple users to a computer server.  Websites are clear examples of service providers.

Information Content Providers (or content providers) are those entities or persons responsible, in whole or in part, for the creation or development of information provided through the Internet or any other 'service provider.'   

Further, the CDA establishes the 'Good Samaritan' protection. 47 USC § 230 (c). This protection expressly states that 'service providers' cannot be considered 'publishers' or 'speakers' of the information provided by a content provider.  Thus, websites may be both service providers and content providers if the whole or part of its content is directly provided by them.  It is precisely in this scenario that the issue of liability gets a twist.   It is important to note that liability for a website may come from violation of different federal and state laws.  Reviewing the possible laws a specific business (online or offline business) face should be considered first.  For instance, does the website may violate Intellectual property rights, the Fair Housing Act, or any other federal and state law?    

In the case of Fair Housing Council v. Roommate.com LLC (521 F.3d 1157, 9th Cir. 2008), a federal court entertained the issue of whether a website offering match/renting services was liable under the Fair Housing Act (FHA) and state housing discrimination laws.  The defendant, Roommate.com, was a website that listed places for rent and in which those looking for a place to rent could register to access the listings.  Registration required filling out a form whose questionnaire was developed by the defendant and included questions like race, gender, sexual orientation, and whether children were to live in the premises.  In addition to this questionnaire, registrants were given the option to provide 'additional comments' in a box.  They could write any comments they had in an essay format. 

After a worth-reading analysis, the court held that a website like the defendant's in this case may be both a service provider and a content provider.  Thus, the defendant's website may be liable for part of the content.  Specifically the court held: "With regard to the Communications Decency Act of 1996 (CDC), a website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is responsible, in whole or in part for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content."

In this case, the court held that the defendant was liable for violation of the FHA as to the questionnaire it designed for the users to fill out.  Since the discriminatory questions used to register were drafted by the website owner, the website was a 'content provider' (information content provider).  Yet, as to the 'additional comments' section, the court held that the defendant's website was a service provider; and thus, immune from liability according to the CDA, 47 USC § 230.  Registrants could write any 'additional comments' in this section and they were published as written.  No editing or additional drafting from the defendant's website was involved in this section. 

Thus, the court's interpretation of the Good Samaritan immunity suggests that when a website is involved in creating the content or drafting questions for the users to input the content, the website is liable for violation of any applicable law to the case at hand.  Yet, when the website is just a recipient of information or content uploaded or provided by the users or third parties, that website may not be liable for violation of any law because it will not be considered a speaker or publisher of that specific content.

Full post as published by IBLS Internet Law Blog on May 28, 2008 (boomark / email).