This is a common question I get while speaking and consulting. Can Publishers be sued for user comments place on their site via forums and bulletin boards. The answer is Yes. Seek advice from a legal professional! My experience tells me this... you can be sued for anything. Period. Will you loose or win in court is the better question. The answer received a bit more clarity when the Middle District Court of Florida ruled this week that the federal Communications Decency Act protects site operators from liability for user comments. "The court finds that the mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the ... website is not sufficient to treat defendants as information content providers," wrote Judge Marcia Morales Howard of the Middle District of Florida, Fort Myers division.”
Legal wins by publishers continue across the nation as site publishers embrace user generated content to drive traffic and give users a reason to return to their sites on a daily basis.
There is a quiet dance that must occur on magazine web sites between user generated content and publisher generated content. I talked about this a bit in a previous post about user generated video. Read that post here. http://ryandohrn.com/index.php?option=com_content&task=view&id=20&Itemid=26
User generated content is critical to your sites success online, but “the mix” of this content and the content generated by your editorial team is the real point to focus upon. In some cases a sub site makes the most sense with some information that pulls back and forth between the sites. If your magazine deals with very exclusive and very expensive editorial content then user generated content will often take a back seat, but should not be forgotten. But, this is a bit of a different debate than if you should place user generated content online at all for fear of being sued. Consult a lawyer for legal advice, if you are asking for my opinion, from a internet perspective, user generated content is critical to your success online as it will drive traffic, increase revenue and give your site an overall fraternal feel that makes users feel comfortable on your site. When users feel comfortable on your site, they feel at ease with your magazine. This in turn, will drive them to subscribe to continue that “all in the family” feeling. Also, when users feel a part of your family, they are more open to receiving e-mail blasts and offers from you that also drive revenue.
Wendy Davis from Media Post posted the following online at Media Post that should set most publishers minds at ease to the end that in most cases the publishers win.
THE PUBLISHER OF ONLINE COMPLAINT site Ripoff Report has won a lawsuit filed by a Colorado company that took issue with users' posts about it tagged with labels like "con artists," "corrupt companies" and "false TV advertisements."
In the case, a federal district court in Florida late last week dismissed a defamation and trademark infringement complaint brought by Whitney Information Network, a company billing itself as offering education in real estate investing, against Xcentric Ventures, the Arizona company that runs RipOffReport.com and BadBusinessBureau.com.
The court ruled that the federal Communications Decency Act protects site operators from liability for user comments--even when the company behind the sites has created tags for commenters to use to classify their posts. "The court finds that the mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the ... website is not sufficient to treat defendants as information content providers," wrote Judge Marcia Morales Howard of the Middle District of Florida, Fort Myers division.”
Whitney Information Network's in-house lawyer declined to comment on the matter, or state whether the company planned to appeal.
Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law and a well-known advocate for online publishers, said the case seemed "entirely consistent with existing precedent," even though the result--that tags created by publishers are treated as if they were user-created--might seem counterintuitive.
He said the court's rationale stems from the concept that "the Web site wrote those terms, but really they're given effect only when the users choose them."
The case raises the same legal issue as another pending lawsuit against roommate-matching site Roommates.com. In that case, a fair housing group in California sued Roommates.com for civil rights violations on the theory that the site enabled discrimination by giving users questionnaires with choices like "I will not live with children," as well as options to indicate whether they're willing to live with straight roommates only, gay roommates only, and the like.
The 9th Circuit appellate court initially ruled last May that Roommates.com was not immune from liability under federal law on the theory that the site had collaborated with users to create the content. "By categorizing, channeling and limiting the distribution of users' profiles, Roommate provides an additional layer of information that it is 'responsible' at least 'in part' for creating or developing," a three-judge panel of the court wrote.
But the 9th Circuit later vacated that ruling and ordered re-argument, which it heard late last year. A host of other Web companies--including Amazon, Google and eBay--unsuccessfully attempted to file a friend-of-the-court brief on behalf of Roommates.com, but the court rejected it in December, apparently because accepting it would have created a conflict of interest for one or more judges deciding the case.
The views of Ryan Dohrn are 100% personal in nature and do not represent the views of his employer, any other person, company or entity in any way. Any similarly is coincidental in nature. Please listen to Ryan’s audio version of this blog online at http://www.ryandohrn.com/
By Ryan R. Dohrn ©2007
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