Hi, my name is Lou Levy. I’m with the law firm of Lerman Senter, PLLC, in Washington, D.C. And I’m here to talk to you today about issues concerning posting of user generated content on your websites. I’m sure all of you operate websites and many of you permit users to post information, either audio, video or text material on the websites. That can be a problem if that material infringes the rights of any third party. I’m sure most of you know that YouTube has had many legal problems and been sued for posting of material, posting of content originally filmed by television networks on their website. Smaller website operators face the same issues. So you have to be sure that your users understand that they shouldn’t post that information and you have to make sure you have sufficient notice on your website for who to contact so that material can be taken down, thus enabling you to take advantage of a safe harbor under the law.

Turning first to user obligations, the first thing you need to do is make sure that your terms of use specify that users shouldn’t post information that infringes the rights of the third party, and perhaps more importantly require the users to warrant that any material they’re putting up on your website doesn’t infringe the rights of the third party. That will obligate them by contract to avoid posting infringing material and it gives you another level of protection there in terms of what their obligations are to you as a user of your website.

The second thing you need to do is to post information or to post notice of who a person can contact if their material, the material they own is posted on your website without authorization. That falls under what’s called the Digital Millennium Copyright Act, DMCA safe harbor provision. The safe harbor provision allows you as the website operator to avoid liability provided that you post what’s called a notice and takedown provision, or that you post notice on your website of who you can contact and that you instruct anyone with a complaint to provide sufficient information to allow you to identify the material and to allow you to identify their material. That will give you the right to protect yourself and avoid liability under the safe harbor provision of the DMCA. And again that notice goes in the terms of use along with the obligations and the warranties of the user. It’s very important to have those in your terms of use.

The second thing you need to know concerns material that goes beyond copyright material and what you can do about it. In particular, if users post information that’s discriminatory, hateful, lewd, lascivious, or otherwise objectionable, the question is what are your rights as a website operator to filter that material and to take it down. The fact of the matter is you have rights. And for those of you who are concerned about it, the First Amendment because most of you are not government entities, provided you’re not a government entity, you’re not restricting the First Amendment rights or the free speech of the public, you have the right to take down that information. And you have an immunity and specifically under the Communications Decency Act to take down information, to filter information, and it allows you to voluntarily take information to restrict access or the availability of material that is lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. That’s very broad and that gives you the right to filter out that information. It’s also important in your terms of use that you require users to obligate themselves and undertake by contract to not post information that fits into those categories, and that can include hateful speech and racial and discriminatory speech and things like that. And once you have notice of that, if anyone ever calls to complain about that, which will happen, you can take that information down.

One thing you need to know here is that you can fall out of that safe harbor and you won’t be eligible for it if you’ve done anything to enable the posting of that information on your website. The case in point here is a case out of California dealing with roommates.com. Roommates.com posted information that allowed people to find roommates. Innocent enough, you say, I like to stay up at night, I don’t like to stay up at night, I like my apartment clean, I like my apartment dirty. One of the criteria they listed however dealt with racial preferences. And because they listed a racial preference in their criteria, they were enabling the use of racially discriminatory provisions. It violated the California Fair Housing Statute. That enabling made them liable under the law.

So you have to make sure that you avoid any appearance of facilitating the posting of any kind of objectionable material on your website. And provided that you do that, provided you’re not enabling, you’ll be able to take advantage of the Section 230 safe harbor, which basically is a publisher’s immunity. You’re not responsible for someone else’s content that happens to appear on your website.

If you have any questions about this, I invite you to send me an email at Llevy@LermanSenter.com. Thanks very much for your attention.

Thanks for listening to this edition of the Legal River podcast. If you have a business law question you would like to see answered in a podcast, please email us at Podcast@LegalRiver.com. To reiterate, all views expressed in this presentation are intended only as a general discussion of the issues and should not be regarded as legal advice. For additional details or advice about a specific situation, please consult legal counsel directly.