Tort Liability in New Media Steve Baron April 2, 2009

MANDELL MENKES LLC 2 Content is King – But it can get you in trouble.  New media allows users and publishers to interact and share content.  But, who is legally responsible and for what content?

MANDELL MENKES LLC 3 What Is User Generated Content (UGC)?  Content created by the public, not media professionals, that appears on the Web.

MANDELL MENKES LLC 4 Where Can You Find UGC?  Newspaper, television and radio websites  video sharing sites (YouTube)  blogs (comments section)  opinion sites (Yelp, Amazon.com)  discussion boards  television programs (CNN’s iReport)  contests  Social networking sites like MySpace, Facebook, LinkedIn, Twitter, and photo sharing sites such as Flickr, Shutterfly, Picasa and Snapfish.

MANDELL MENKES LLC 5 Where Can You Find UGC? (cont’d)  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 disseminated in various media outlets and does not typically receive editorial review.

MANDELL MENKES LLC 6 What Tort Liability Can Publishers Face With User Generated Content?  Defamation  Obscenity  Right of Publicity/Right of Privacy  Infliction of Emotional Distress  Civil Rights (e.g., Fair Housing Law)

MANDELL MENKES LLC 7 What Protections Exist to Shield Internet Publishers From Tort Liability?  Section 230 of the Communications 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).

MANDELL MENKES LLC 8 What Protections Exist to Shield Publishers From Liability? (cont’d)  Section 230 encourages (but does not require) websites to filter or review submissions. “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…” 47 U.S.C. § 230 (c)(2).

MANDELL MENKES LLC 9  Exceptions/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)

MANDELL MENKES LLC 10 Fair Housing Council of San Fernando Valley v. Roommates.Com  Which Court?  Who’s the plaintiff?  Who’s the defendant?  What are they fightin’ about?  What is the Court asked to decide?

MANDELL MENKES LLC 11 Fair Housing Council of San Fernando Valley v. Roommates.Com  Court = Ninth Circuit  Plaintiff = Fair Housing Council of SF  Defendant = Roommates.com  They are fightin’ about whether FHC violated federal fair housing law by allowing users to screen roommates.  Court is asked to decide whether Roommates.com is immune under Section 230 of CDA.

MANDELL MENKES LLC 12 Fair Housing Council of San Fernando Valley v. Roommates.Com  Defendant operated website to match prospective renters with people looking for a roommate. In order to view the site, users must submit information for their profiles, including gender, sexual orientation, and whether they live with children. Plaintiffs sued, arguing that defendant’s business violated the federal Fair Housing Act and California’s housing discrimination laws.

MANDELL MENKES LLC 13 Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (cont’d)

MANDELL MENKES LLC 14 Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (cont’d)  Court 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.

MANDELL MENKES LLC 15 Fair Housing Council of San Fernando Valley v. Roommates.Com  What are the implications of this case for new media?  Is the distinction between active and passive solicitation of content clear?

MANDELL MENKES LLC 16 Doe v. Friendfinder Network  Which Court?  Who’s the plaintiff?  Who’s the defendant?  What are they fightin’ about?  What is the Court asked to decide?

MANDELL MENKES LLC 17 Doe v. Friendfinder Network  Court = USDC – District of New Hampshire  Plaintiff = Jane Doe?????  Defendant = Friendfinder Network  They’re fighting about an allegedly false and unauthorized personal ad  The Court must decide if the the complaint should be dismissed under Section 230 of the CDA.

MANDELL MENKES LLC 18 Doe v. Friendfinder Network  What are plaintiff’s Claims?  Invasion of property/IP Rights  Defamation  Intentional/Negligent/ Reckless conduct  Intentional infliction of emotional distress  Violation of NH Consumer Protection Act  False designations under Lanham Act  Willful and Wanton Conduct

MANDELL MENKES LLC 19 Doe v. Friendfinder Network  What claims survive the motion to dismiss and why?

MANDELL MENKES LLC 20 Doe v. Friendfinder Network  Right of publicity claim – not immune from suit under Section 230 of CDA.  False designation of origin under Section 43 of Lanham Act – false or misleading endorsement. Need not be a celebrity.

MANDELL MENKES LLC 21 Quotes of the day  “The right to be let alone is indeed the beginning of all freedom.”  Justice William O. Douglas  “Even the smallest intrusion into private space by the unwanted gaze causes damage, because the injury caused by seeing cannot be measured.”  Hezzek Re’iyyah, Encyclopedia Talmudit