Website operators who allow the posting of user-generated content on their sites enjoy broad immunity from legal liability. This includes immunity from copyright violations if the site owner registers with the Copyright Office, does not encourage the copyright violations and takes down infringing content upon receiving notice from a copyright owner (see our post here for more information). There is also broad immunity from liability for other legal violations that may occur within user-generated content. In a recent case, involving the website Roommates.com, the US Court of Appeals determined that the immunity is broad, but not unlimited if the site is set up so as to elicit the improper conduct. A memo from attorneys in various Davis Wright Tremaine offices, which can be found here, provides details of the Roommates.com case and its implications.

In the case, suit was filed against the company, alleging violations of the Fair Housing Act, as the site had pull-down menus which allowed users to identify their sex, sexual orientation, and whether or not they had children. Including any of this information in a housing advertisement can lead to liability under the law. The Court found that, if this information had been volunteered by users acting on their own, the site owner would have no liability. But because the site had the drop-down menus that prompted the answers that were prohibited under the law, liability was found.

The protections offered for those hosting sites come from two separate statutes. The protections against copyright infringement claims are in the Digital Millennium Copyright Act, and require that the site owner take several steps to secure the safe harbor from liability. Registration of an individual who can be contacted by a copyright owner if infringing material is posted is required. The Copyright Office's instructions for such registration can be found here. The site owner must take down infringing material if properly notified, and should not encourage or promote such infringement.

The protection against most other liability stems from Section 230 of the Communications Decency Act, and has, for the most part, been interpreted very broadly to protect the company running the website from anything posted on the site by third parties. The holding of the Roommates.com case, while signaling a slight retreat, basically brings the requirements for the safe harbor closer to those for copyright protection in that the site owner cannot be a part of the activity that causes to liability - here by providing the option to choose certain classifications that could be construed as a violation of the law. While the details and subtleties of the decision are discussed in greater detail in our firm's memo, the basic point seems to be that where the site owner provides part of the content that gives rise to the liability, it cannot claim the safe harbor. If the same information had been posted by third-party site users without the prompts from the site itself, there likely would be full protection for the site owner. Thus, to the extent that you are encouraging website users to post their own content on a site that you own, make sure that your site does not prompt the user into providing any specifics that could be found to have been specifically prompted by site material or information that you provide.

Note that there are no doubt going to be other arguments about how overt a "prompt" must be for the site owner to fall outside the safe harbor. Also note that this is the decision of just one US Court of Appeals and courts in other jurisdictions could decide a case like this differently (in fact there was a dissent here that worried about how lines would be drawn). So there is no doubt that we have not heard the last of this issue.

David Oxenford

David Oxenford is a partner in the Washington, DC office of the law firm of Davis Wright Tremaine LLP. This post originally appeared on DWT's Broadcast Law Blog, and is posted on DMW with the author’s permission. This information is provided for educational purposes only and should not be relied on as legal advice, and should not substitute for competent legal advice from your own attorney.

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