Proposed Legislation: A new bill was recently proposed to the New Jersey legislature, which appears to be, in large part, a reaction to the infamous story of Megan Meir, the Missouri teenager that committed suicide after being defrauded on the MySpace.com website. The now-all-too-famous story is that a neighbor, and arguably the mother of that neighbor, created a false identity on MySpace, purporting to be a young man interested in dating Megan. Megan allegedly committed suicide once her "suitor" indicated that he was no longer interested in her. Among other things, the proposed legislation would make it a crime for a person to utilize the Internet to represent himself "to be another person without the express authorization or written approval of that person, for the purpose of harassment of a minor child. . ." While the law is well-intended, I believe it currently lacks many of the limitations and protections that will need to be incorporated to make it workable. For instance, the bill, as drafted, would have it apply to "any person." Does this mean that a minor engaging in such misrepresentations would be equally guilty as an adult doing so? Moreover, there could be other instances when the prohibited conduct may be necessary. For instance, as drafted, the law would arguably prohibit Chris Hansen and his crew's actions in their How to Catch a Predator series, since the law specifically prohibits posing online as someone younger with the intent that someone will try to make contact with that purported minor. That being said, legislation in this arena is sorely needed. Hopefully this bill will evolve in a manner that makes it both enforceable and effective.
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Proposed Legislation: Currently pending in the New Jersey legislature is bill A1827, which proposes a requirement that all Internet computer services and Internet service providers remove defamatory materials and disclose account information to defamed individuals. Specifically, if passed, this law would require a website to adhere to two new requirements. First it would be required to remove defamatory materials once it has received notice from a user that the materials are "defamatory and offensive." Second, it would require a website to disclose "relevant account information" when the website has posted defamatory content about the requesting individual.
The proposed law would greatly enhance the remedies available to a person or business who has been defamed on line. Currently most websites take the position that (a) they are immune from liability relating to other posters' defamation; (b) they are not obligated to take down such information; and (c) if you want to obtain such information about the actual speaker of the defamatory material, you need to obtain a subpoena. This position is bolstered by some of the cases that have come down on this issue, including ones that have specifically denied a user the right to obtain information about an anonymous poster. Whereas previously a website or forum host could try to avail itself of immunity under the Communications Decency Act, this law, if passed would provide direct responsibilities and liability for the website for failure to comply with the statute's requirements. Moreover, it could enable a victim to obtain information about the wrongdoer without having to obtain an order to show cause, or otherwise commence suit to simply obtain the identity of the responsible.
On the other hand, if passed, this law could cause undue harm to website owners in that they would now have the burden of policing their sites. Although the law only requires that materials be removed once the website has been put on notice, websites are now tasked with the responsibility of determining whether the complained-of content is "defamatory and offensive." This determination is often to be made by a trier-of-fact, and is therefore perhaps inappropriate for website owners to determine. If this law passed, our recommendation to such websites would surely be to err on the conservative side, and take down any and all content that it receives a complaint about. However, an argument could certainly be made that such efforts, and requirements under the law, could impair free speech.
Communications Decency Act Immunity: A critical decision was made last summer by the United States Court of Appeals for the Ninth Circuit, which could have significant impact on how user-content based websites are structured. In Fair Housing Council of San Fernando Valley, et. al., v. Roommate.com, LLC, the Court held that the owner of roommate.com could not avail itself of the protections afforded by the Communications Decency Act with regard to an alleged violation of the Fair Housing Act and various other state laws. Indeed, this was the critical issue of this case.
Generally, websites such as roommate.com, where the content is provided by website users rather than the website producer itself, try to avail themselves of the protections of the Communications Decency Act. This law provides certain immunities to Internet Service Providers (i.e. AOL), but has been interpreted broadly. Many courts have found that if a website provides a forum for others' speech that the website itself should not be liable for the individuals' speech.
In the instant case, the website generally provided a forum for website visitors to post requests for potential roommates. The avenue for the requests was not simply an open forum where the website visitors authored their own text. Rather, in addition to an open comments field, the site provided drop down windows for its users to complete. Specifically, the Court noted that “[t]o become members of Roommate[.com], users respond to a series of online questionnaires by choosing from answers in drop-down and select-a-box menus. Users must disclose information about themselves and their roommate preferences based on characteristics such as age, sex and whether children will live in the household. They can then provide “Additional Comments through an open-ended essay prompt.” The argument raised by the Fair Housing Council was that by providing these drop-down menu options, roommate.com essentially participated in the users’ speech. Accordingly, if the user engaged in discriminatory speech (i.e. posting an intent to only consider applicants based on their gender, race, familial status, sexual orientation or other discriminatory criteria), the website itself “helped” the user do so by providing the drop-down menus.The Court held that the website therefore essentially was part of the efforts of its users to discriminate in their housing choices.
The Court decided that by providing those drop-down windows, the speech was not just that of the individual-users.Rather the website itself assisted in the discriminatory application language.The Court stated that “Roommate[.com] is immune so long as it merely publishes information provided by its members. . . However, Roommate[.com] is not immune for publishing materials as to which it is an ‘information content provider.’ A content provider is ‘any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet.’”
Accordingly, the Court held that with regard to the content within the drop-down windows questionnaire Roommate.com, could not avail itself of the immunity provided by the Communications Decency Act.However, Roommate.com was protected under that statute with regard to speech contained in the “additional comments,” section of the website:“Roomate[.com]’s open-ended question suggests no particular information that is to be provided by members; Roomate[.com] certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members.”
We therefore recommend the following:
·First, and foremost, be sure that you structure your website in a manner that allows website users to provide their own content in an open-forum.Ensure that you are not providing any of the content for them.In other words, ensure that you do not make the same mistake that roommates.com did: do not have drop down windows or other “choices” for the users to elect from in order to create their content.
·You should also closely monitor your website for users’ wrongful conduct, including posting discriminatory or defamatory content.You should endeavor to keep such vulnerable content off of your website.