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April 14, 2008

Blog Sites Beware: Liability Lurks In Bloggers’ Postings

If your site allows visitors to post digital files or comments (e.g. in an online blog, as well as in a forum or chat room), you could be held liable for copyright infringement if any of their postings infringe the rights of another person, even if you are unaware of the infringement. Under general copyright principles, you would be strictly liable for their copyright infringement, even if you are “innocent”.

You could also be liable for defamatory statements posted by bloggers.

The Playboy Case And Copyright Infringement

A good example of an “innocent infringer’s” liability that occurred before the enactment of Digital Millennium Copyright Act (DMCA) is the case of Playboy Enter., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993). In this case, Playboy alleged that the defendants who operated a bulletin board service (BBS) were liable for copyright infringement. Subscribers to the defendants’ BBS had illegally taken copyrighted photos owned by Playboy and uploaded them onto the defendants’ BBS.

The court found the defendants liable for copyright infringement, despite the fact that the defendants did not upload the photos (the subscribers uploaded them), and the defendants were unaware of the presence of the infringing photos until the lawsuit was filed.

The court stated: “…intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement …”.

The DMCA, enacted in 1998, provided a “safe harbor” so that this harsh result can be avoided, but service providers must take affirmative steps to qualify for it… or else you will suffer the same harsh fate as Frena.

To qualify for the DMCA “safe harbor” from strict copyright liability, you are required:

* to post a specific notice on your site (Terms of Use); and

* to file the DMCA Registration Form with the US Copyright Office.

Liability For Defamatory Statements

In addition to liability for the copyright infringement of bloggers, another pitfall to avoid if you permit visitors to post to your site is liability for their defamatory comments about another person, a competitor, or another product.

Defamation is an intentional false communication, made either orally or in writing, published to a third party, which injures another person or company’s good name or reputation.

While it is clear you will be liable for defamatory statements posted by you or your employees on your site, what about defamatory statements posted by bloggers? Will you be liable?

Statements which consist of pure opinion are not actionable… however, merely stating that a statement is pure opinion does not make it so. For example, a law school professor was awarded $3 million in damages arising out of defamatory statements published on a student’s site.

Online defamation may occur in the context of product reviews where strong statements are posted such as “do not buy this product because it will not perform as advertised”.

In addition, actionable defamation may occur where a site publishes untrue promotional statements about a person or company. For example, in one recent case, the Wall Street Journal was sued by the Harrods department store for publishing the statement that Harrods was the “Enron of Britain”.

Congress came to the rescue of “interactive computer services” in 1996 with subsection (c) of the Communications Decency Act which provides: “No provider or user of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 USCA Sec. 230(c)(referred to below as “Section 230”).

Section 230 was intended to overrule prior case law which routinely held that online providers were liable as publishers and speakers for third party content. Now, under Section 230, absent an affirmative showing by a plaintiff that an online service provider is the author of a defamatory message, email, or post, the provider should almost always avoid liability for defamation. In other words, if you or your employees are the authors of defamatory statements, you’ll still be liable, but if your website visitors are the authors of defamatory material, you won’t be liable.

A word of warning about another pitfall — be careful in assuming an obligation to monitor messages, email, or posts contributed by your site visitors or in exercising editorial control over them. If you assume an obligation to monitor, or if you maintain editorial control, and if you fail to screen out defamatory statements, you may be liable, despite the protections of Section 230.

For this reason, your Terms of Use should clearly state the extent to which you exercise editorial control, if at all, over messages, email, or posts of site visitors. And it’s always best to reserve the right to monitor postings, but not the obligation to monitor.

Conclusion In summary, if you have a blog, take the steps discussed above that are required to qualify for the DMCA “safe harbor” from copyright infringement. Ensure that that your employees do not post defamatory statements on your blog, and affirmatively disclaim any obligation to monitor posts by bloggers.

Chip Cooper is a leading intellectual property, software, and Internet attorney who advises software and ecommerce businesses nationwide. Chip’s easy and affordable online contract drafting service coordinates website contracts such as Terms of Use, Privacy Policy, Subscription, Membership, and SaaS agreements. Visit Chip’s site and download his FREE report, “12 Sure-Fire Ways Your Website Can Get You Sued”.