August 06, 2008

The Basic Principles of Media Law: What You Should Know When Starting Or Running a Website or Online Business

There is a common misconception that the seeming anonymity and accessibility of the Internet makes it much like the Wild West.  Most Internet users do not understand that every published message board or blog post is subject to a myriad of state and federal laws, many of which were in place long before the creation of the Internet.  Internet posts can subject a poster to liability for defamation, invasion of privacy, right to publicity infringement, and trademark or copyright infringement.  Additionally, a user’s posts can subject an information service provider to vicarious liability for copyright and trademark infringement, or for the republication of defamatory statements.

As we have said in other posts, Section 230 of the Communications Decency Act says that interactive computer service providers will be treated as publishers under the law, which means that they will not be held liable for the defamatory statements of their users even if they exercise control over the content of user submissions.  Service providers are shielded from liability for editing submitted content as long as they do not substantially alter the meaning of the content.  But service providers can still be held to be contributory infringers or vicariously liable for the copyright and trademark infringement of their users. 

Vicarious liability for copyright infringement occurs where a service provider has the ability and the right to control users and receives a financial benefit from the users’ copyright infringing activities. Contributory copyright infringement occurs where a service provider has knowledge of a user’s copyright infringement and induces, causes, or materially contributes to it.  Contributory trademark infringement occurs where a service provider either intentionally induced another to infringe on rights to a mark, or where the provider continued to publish or distribute an item that it knows or has reason to know is in violation of trademark law.  Vicarious trademark infringement occurs where there is an apparent or actual partnership between the infringing user and the service provider, and the infringing user violates trademark law.

All of these issues can be avoided if a service provider establishes a proper Digital Millennium Copyright Act (DMCA) and trademark takedown policy.  Under the DMCA, a service provider has a safe harbor period during which it can take down any infringing materials and not face liability for vicarious or contributory copyright infringement.  Similarly, policies, such as eBay’s VERO program, that outline service providers’ trademark takedown procedures are helpful in avoiding contributory infringement and vicarious liability claims.  In the end, a little common sense goes a long way.  As long as a service provider does not have knowledge of infringing activities and acts quickly to remedy any that are brought to its attention, it can typically avoid liability. 

Even though service providers are protected from defamation suits under Section 230, normal Internet users are not.  Defamation, which includes both liable and slander, is the publication of a false statement that causes injury to another.  Unlike Section 230, defamation is a product of state law.  Defamation does not concern true statements, no matter how injurious.  Internet users can avoid liability for defamation by using reliable, truthful sources and by exercising a little due diligence, which includes documenting sources and clearly stating what is opinion and what is fact.  Defamation law does not apply to product reviews or opinions about a business, so users are free to state their dislike of a product or service.

Internet users should also be concerned with state law defining a right to privacy.  Many states have laws prohibiting the publication of private facts about individuals that have not been previously disseminated to the public.  Under constitutional law, states are allowed to define the standard of liability for the publication of private facts as long as they do not impose liability without fault or allow punitive damages.  Typically, this cause of action requires: 1) publication; 2) of a private fact; 3) offensive to a reasonable person; and 4) the facts are not of a legitimate public concern.  This cause of action does not apply to statements about public figures concerning newsworthy events, but even public figures retain a “zone of privacy” when it comes to certain protected information such as health records.  To avoid liability, it is best to obtain consent to publish the facts from the private party.  This can be done with a waiver or release contract.

Another state law area of concern is the right to publicity.  Most states protect an individual’s property right to publicity, that is, the right to disseminate their own photographs, likenesses, and product endorsements.  For example, one of the most famous cases concerned the use of a female robot that turned letters in a manner similar to Vanna White in a Wheel of Fortune advertisement.  White sued and won under the theory that she hadn’t given consent to use her likeness and, therefore, her property interest in her right to publicity was infringed.  Other cases have involved Tom Cruise, The Sopranos, and Tiger Woods.  This right to publicity is a property right that can subsist after death, and California expanded the right to publicity to 70 years after death in its 1985 Celebrity Rights Act.  The best way to avoid liability for an infringement of the right to publicity is to obtain consent or licensing agreements to use the likeness or endorsement of a celebrity on your website. 

As always, if you find yourself faced with a legal problem involving the right to privacy, the right to publicity, defamation, or intellectual property infringement, it is best to contact an attorney with experience in those areas.

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