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March 16, 2009

2 Tips To Avoid Costly Liability For Visitors’ Posts To Your Interactive Website

Many sites these days are interactive — they permit site visitors to post to the site.

Forums and blogs would be at the top of most of our lists for types of interactive sites. However, different kinds of sites are also permitting owners to post, such as classified ad sites.

What happens if a visitor posts a defamatory statement ‘- or statements that are in violation of specific statutes — on your blog, forum, or in a classified ad on your site? Are you liable?

The Communications Decency Act

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, interactive websites have a shield against liability for visitor’s posts. However, two recent cases show that the Section 230 shield from liability has its limits.

The Case Upholds Section 230 As Liability Shield

In November 2006, a US District Court held that, an online classified ad site, was not liable for discriminatory practices of its users.

The suit had been brought by the Chicago Lawyers’ Committee for Civil Rights Under Law which alleged that had a series of rental housing ads containing discriminatory statements. Examples of discriminatory statements by users included “no minorities” and “no children”.

In March 2008, the 7th Circuit Court of Appeals upheld the District Court’s decision. Essentially, the 7th Circuit held that was just a “messenger” and is shielded from liability by Section 230 for the discriminatory ads posted by its users.

The Case Goes The Other Way

In April 2008, the 9th Circuit reversed a District Court’s ruling and held that Section 230 did not shield from certain portions of the site that gave users limited choices for expressing their beliefs. On the other hand portions of the site that allowed free-form text were held to be shielded by Section 230. Similar to the case, the users’ statements were alleged to be discriminatory and in violation of fair housing statutes.

The key distinguishing factor noted by the 7th Circuit was the structure imposed by For example:

  • questions were posed to users asking for racial preferences; and
  • pull-down menus for user’s profile answers required answers before the user could proceed

Does Case Signal a Major Shift?

The question arises: does the decision signal a major shift away from the protections of Section 230? The decision indicated that a major shift was not intended.

The opinion indicated that the ruling should only apply narrowly to a limited number of sites: “The message is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.”

In addition, the opinion contained clear language that a major shift away from Section 230 was not intended. “Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged — or at least tacitly assented to — the illegality of third parties.”

Beware of “Obligation To Monitor” Pitfall

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.


In summary, there are 2 basic lessons regarding visitors’ posts to your site:

  • beware of placing structure on user’s posts in classified ad sites; there is safety in free-form text, and
  • be careful to avoid an obligation to monitor visitors’ posts.

Chip Cooper is a leading intellectual property, software, and Internet attorney who’s advised software and online businesses nationwide for 25+ years. Visit Chip’s site for his online contract drafting service, and download his FREE newsletter and Special Reports: “Determine Which Legal Documents Your Website Really Needs”, “Draft Your Own Privacy Policy”, and “Write Your Own Website Marketing Copy — Legally”.