Website operators planning to allow visitors to post their own "user generated content" can, for the most part, take solace that they will not be held liable for third-party posts if they meet certain criteria.  The Communications Decency Act provides protection against liability for torts (including libel, slander and other forms of defamation) for website operators for third-party content posted on their site.  The Digital Millennium Copyright Act provides protection against copyright infringement claims for the user-generated content, if the site owner observes certain "safe harbor" provisions set out by the law.  The requirements for protection under these statutes, and other cautions for website operators, are set out in detail in our firm’s First Amendment Law Letter, which can be found here.

 As detailed in the Law Letter, the Communications Decency Act has been very broadly applied to protect the operator of a website from liability for the content of the postings of third parties.  Only recently have courts begun to chip away at those protections, finding liability in cases where it appeared that the website operator in effect asked for the offending content – as in a case where the owner of a roommate-finder site gave users a questionnaire that specifically prompted them to indicate a racial preference for a roommate – something which offends the Fair Housing Act.  However, as set forth in the Law Letter, absent such a specific prompt for offending information, the protections afforded by this statute still appear quite broad.

The protections against Copyright infringement liability contained in the Digital Millennium Copyright Act actually impose very specific obligations on the site operator before it qualifies for the safe harbor immunity.   The site owner must register with the Copyright Office, provide the name of a specific person on staff to receive complaints of copyright violations (and keep that name up to date), adopt terms of use for its site that deals with how the site will deal with repeat infringers, have no actual knowledge of infringement and promptly remove offending material if properly notified by a copyright holder that it has been posted on the site ("the notice and take-down" provision).  As with the Communications Decency Act, the website operator should also do nothing to encourage the posting of infringing material.

Details of these requirements can be found in the Law Letter, and should be reviewed by website operators contemplating the posting of user generated content.  These statutes make possible sites that allow users to post material, but require the site owners to observe the formalities that are set out in the statutes, and to avoid encouraging the posting of infringing material.  So build your site and feature third party content, but do so carefully.