NATIONALLY RECOGNIZED FEDERAL LAWYERS

27 Nov 23

When Website Owners Become Liable for User-Generated Fakes

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Last Updated on: 15th December 2023, 10:30 am

When Website Owners Become Liable for User-Generated Fakes

The internet allows people to share information and connect like never before. But it also enables the spread of misinformation and fake content. When false or defamatory user-generated content appears on a website, legal questions arise about the website owner’s responsibility.

Section 230 of the Communications Decency Act generally protects websites from liability for third-party content. But platforms may still face legal risk if they encourage or intentionally allow unlawful material. Recent controversies and proposed reforms are bringing fresh scrutiny to when website owners become liable for user-generated fakes.

What the Law Says

Section 230 of the CDA states that websites cannot be treated as the “publisher or speaker” of user-generated content. This gives websites legal immunity for content posted by users. Platforms are shielded from liability even if they edit or remove some content.

But Section 230 does not protect websites that participate in developing illegal content. Courts look at if the platform induced the creation of unlawful material with its content guidelines, features, or business model. Sites also lose immunity if they don’t take down content once notified that it’s illegal.

Additionally, Section 230 only applies to federal civil liability and state charges based on third-party content. It does not shield platforms from federal criminal charges or civil enforcement actions brought by the government.

Key Legal Precedents

Several court cases have shaped how Section 230 protections apply:

  • Zeran v. America Online (1997) – AOL not liable for an anonymous user’s defamatory posts. Even after notice, websites have no obligation to remove content.
  • Fair Housing Council v. Roommates.com (2008) – Dating site lost immunity for requiring discriminatory criteria in user profiles during sign-up process.
  • Jones v. Dirty World Entertainment (2014) – Gossip site found not liable for defamatory third-party posts it did not materially contribute to developing.
  • Dyroff v. Ultimate Software Group (2017) – Experience Project retained immunity despite drug-related content. Did not directly encourage unlawful conduct.

These cases illustrate how websites design and policies affect liability under Section 230. Simply providing a platform for user content is not enough. But sites have considerable leeway to moderate discussions before losing protections.

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Evolving Platform Accountability

While Section 230 remains in force, changing technology and public expectations are shifting the landscape for website liability:

Content Moderation at Scale

Social media platforms now face massive volumes of user-generated content. Automated moderation and reporting systems aim to identify and remove harmful posts. But these imperfect tools have sparked concerns about over-filtering legal speech. And the sheer scale makes it difficult to argue sites are unaware of systemic issues.

Hyper-Targeted Advertising

To maximize engagement and ad revenue, platforms use advanced analytics to personalize each user’s feed. Critics contend that algorithmic ranking and recommendations can lead users toward increasingly extreme content. Though this does not directly make websites liable, it weakens claims that they are neutral platforms.

Manipulated Media

Advances in AI are enabling new forms of misinformation like deepfake videos. While still protected by Section 230, platforms face growing pressure to curb manipulated media. Lawmakers argue sites should lose immunity if they algorithmically spread known deepfakes.

Proposed Section 230 Reforms

Legislators from both parties have introduced bills to amend Section 230. Most proposals would erode immunity for user-generated content related to civil rights, terrorism, child sex abuse, and cyber-stalking. Some would make platforms liable if they don’t remove court-deemed illegal content.

Such changes would chip away at blanket liability protections that websites currently enjoy. However, most reform efforts have stalled to date.

When Platforms May Be Liable

Under current law, websites risk losing Section 230 immunity if they:

  • Encourage users to post specific unlawful content in their terms of service or site design
  • Refuse to remove content after receiving notice that it violates the law
  • Intentionally solicit and pay for illegal materials
  • Knowingly assist criminal activity through tools or services

Factors that can support immunity include:

  • Neutral platform with open access and minimal pre-screening of posts
  • Clear rules prohibiting illegal content
  • Removal of unlawful user contributions when discovered or notified
  • No direct involvement in content creation beyond basic moderation

Section 230 seeks to balance free speech, innovation, and accountability. But the exact line between protected platforms and co-developers of illegal content remains hazy. Courts continue to interpret immunity claims on a case-by-case basis.

Defenses Platforms Can Raise

When facing liability for user content, websites have several legal arguments to defend themselves:

Traditional Defamation Defenses

  • Truth – Statements of fact cannot be defamatory if proven substantially true.
  • Opinion – Opinions receive more legal protection than false statements of fact.
  • Consent – Plaintiff consented to the publication of statements about themselves.
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Content was Lawfully Posted

  • Material was not obscene, fraudulent, defamatory, etc. under applicable law.
  • Content is protected speech under the First Amendment.

Qualified Section 230 Immunity

  • Website did not materially contribute to unlawful content.
  • Promptly removed illegal material upon notice.
  • Platform’s policies and practices do not demonstrate intent to break laws.

User Failed to Mitigate Damages

  • Plaintiff unreasonably delayed taking action to minimize harm.
  • Did not request removal of content through proper channels.

No single defense is guaranteed to succeed. Platforms often make multiple arguments to avoid liability under the specific circumstances.

References

Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). https://law.justia.com/cases/federal/appellate-courts/F3/129/327/556649/

Fair Housing Council v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008). https://caselaw.findlaw.com/us-9th-circuit/1310355.html

Jones v. Dirty World Entertainment Recordings, 755 F.3d 398 (6th Cir. 2014). https://law.justia.com/cases/federal/appellate-courts/ca6/13-5946/13-5946-2014-06-16.html

Dyroff v. Ultimate Software Group, No. 17-5593 (9th Cir. 2017). https://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/07/17-5593.pdf