1. Tort Liability in New Media Steve Baron Nov. 2, 2010

2. 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?

3. MANDELL MENKES LLC 3 Where Can You Find User Generated Content (UGC)?  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.

4. MANDELL MENKES LLC 4 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)

5. MANDELL MENKES LLC 5 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).

6. MANDELL MENKES LLC 6 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).

7. MANDELL MENKES LLC 7  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)

8. MANDELL MENKES LLC 8 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?

9. MANDELL MENKES LLC 9 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 Roomates.com violated federal fair housing law by allowing users to screen roommates.  Court is asked to decide whether Roommats.com is immune under Section 230 of CDA.

10. MANDELL MENKES LLC 10 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.

11. MANDELL MENKES LLC 11 Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (cont’d)

12. MANDELL MENKES LLC 12 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.

13. MANDELL MENKES LLC 13 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?

14. MANDELL MENKES LLC 14 Stayart v. Yahoo! What’s a name worth?  Which court?  Who’s suing whom?  Why?  What are the issues on appeal?  Who wins and why?

15. MANDELL MENKES LLC 15 Stayart v. Yahoo! What’s a name worth?  Seventh Circuit Court of Appeals  Beverly Stayart sues Yahoo! and Friendfinder.com  Web searches linked her name to sites and ads she found “shameful”. (Endorsing pornography and online pharmaceuticals.) She sues for trademark infringement and state law claims.  Does Stayart have “standing” to sue in federal court for trademark infringement.  Yahoo! wins on appeal. Stayart lacks standing to sue for trademark infringement because she lacks a “commercial interest” in her name. Also, the District Court did not err in allowing her to amend her complaint.

16. MANDELL MENKES LLC 16 Maxon v. Ottawa Publishing Company At what price anonymity?  What court?  Who’s suing whom?  Why?  What are the issues on appeal?  Who wins and why?

17. MANDELL MENKES LLC 17 Maxon v. Ottawa Publishing Company At what price anonymity?  Illinois Appellate Court (3 rd Dist.)  Donald and Janet Maxon sue Ottawa Publishing, publisher of The Times.  The Maxons want to unmask the identity of certain anonymous posters on Ottawa’s web site.  What is the appropriate legal test to apply to a petition to identify anonymous speakers.  The Maxons win the appeal because the appellate court finds that the trial court applied an incorrect test and also finds that the Maxons stated a claim for defamation. So The Times must identify the anonymous posters.

18. MANDELL MENKES LLC 18 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