LOSING IMMUNITY FOR ONLINE POSTINGS - How not to manage user-generated content


It is well known that sites that post reviews, even reviews that constitute clear defamation, are generally immune from liability. They have the Communications Decency Act (CDA) to thank for that. So, a notorious site like RipoffReport.com, which will never remove user comments about businesses, no matter how false, is immune from liability. This immunity only applies to the site hosting the user-generated content and does not apply to the user who posted the content. So, you can sue the user for defamation if you are lucky enough to be able to identify him/her. However, it is very important to note that this immunity can be lost if the site edits or manipulates the information thereby transforming itself from a mere conduit to a publisher of information.

A good example is provided by a recent Massachusetts case (Moving and Storage, Inc. v. Panayotov). MyMovingReviews.com is a site that allows consumers to post reviews of moving companies. The plaintiffs, a group of moving companies, claimed that MyMovingReviews.com removed positive reviews about the plaintiffs, and also removed negative reviews about another moving company, Xpress Movers. It just so happens that Xpress Movers owns MyMovingReviews.com. MyMovingReviews.com claimed immunity under the CDA for all the negative reviews from consumers on the site because those reviews all qualified as user-generated content.

The court found that since MyMovingReviews.com removed positive reviews about the plaintiffs, and also removed negative reviews about the moving company affiliated with MyMovingReviews.com, MyMovingReviews.com was manipulating the information in order to drive business to its own moving company, and therefore was actually a “developer” of the content. The site was no longer a mere conduit for user-generated content or an “interactive computer service” but was now a publisher of information and could not avail itself of immunity under the CDA. Ouch!

Bottom Line: The CDA provides very broad immunity. However, if you start manipulating the user-generated content in such a manner that changes the overall presentation or thrust of the content, then immunity may be lost – and extensive liability may follow.

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William Galkin manages GalkinLaw. Mr. Galkin has dedicated his legal practice to representing Internet, e-commerce, computer technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to both startup and multinational corporations on their core commercial transactions.


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