It seems that everyone is a member of a social network these days. Whether it's your kids on MySpace and Facebook, or your colleagues on LinkedIn, people are taking advantage of these new online meeting spaces to make friends, communicate and expand business opportunities.
But what are the legal obligations that arise out of the use of social networks, both for the user and the sites themselves? The law in this area is still relatively unsettled and constantly changing, but some recent developments have created intriguing precedent, and legislation in motion promises to keep things interesting for the foreseeable future.
Laws Pertaining to Social Networking Sites
The two most important statutes to consider when discussing the legal liabilities and obligations of the social networking sites are Section 512(c) of the Digital Millennium Copyright Act and Section 230 of the Communications Decency Act.
Section 512(c) removes liability for copyright infringement from websites that allow users to post content, as long as the site has a mechanism in place whereby the copyright owner can request the removal of infringing content. The site must also not receive a financial benefit directly attributable to the infringing activity.
This creates an interesting problem for most sites that allow users to post music, photos or video. For instance, several content owners, including media giant Viacom, have sued YouTube, the video sharing site, for copyright infringement, and YouTube has claimed a 512(c) defense. Since YouTube is a subsidiary of Google, its future business plan most likely involves serving advertisements according to the kind of video that users view or search for. If the site does this, however, it could amount to a financial benefit directly attributable to the sharing of copyrighted materials.
Those cases are currently before federal district courts, and their resolution will greatly impact the services that social networks offer, as well as their business models.
Section 230 of the Communications Decency Act immunizes website from certain liability resulting from the publication of information provided by another. This usually arises in the context of defamation, privacy, negligence and other tort claims. It does not however, cover criminal liability, copyright infringement or other intellectual property claims.
Thus, if a user posts defamatory or otherwise illegal content, Section 230 shields the social network provider from certain liability arising out of the publication. Websites that, in whole or in part, create or develop contested information, on the other hand, are deemed "content providers" that do not benefit from the protections of Section 230.
A 9th Circuit opinion has called the section's broad coverage into question, and created uncertainty for social networking sites that have relied on Section 230 to protect them from claims relating to the content that their users create.
That case, Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, began when two fair housing groups sued the website Roommates.com, alleging that Roommates.com's roommate networking service violated the Fair Housing Act. The district court found that the website qualified for Section 230 immunity and entered judgment for the website without reaching the question of whether the site did indeed violate the FHA. On appeal of the Section 230 issue, the Ninth Circuit reversed and remanded for a trial on the merits.
A divided Ninth Circuit panel found that the website created or developed information on the site in two ways: First, by creating the questions that users answered when creating their profiles. Second, by channeling or filtering the profiles according to the answers to those questions.
The court's second justification is fairly controversial, and goes against the widely established precedent granting a broad, robust privilege to interactive service providers. In essence, the panel's ruling holds that, by channeling information to users and providing search capabilities, Roommates.com has added an additional layer of information, "meta-information" you could say, that it is at least partly responsible for creating or developing.
The effects of this new "channeling" test could be devastating for social networking sites, many of which operate in similar ways to Roommates.com. Sites could now find themselves open to liability for information posted by third-parties, and this could result in a reduction of the number of speech-related services available online - exactly the opposite of what Congress intended when passing Section 230 in the first place.
For example, MySpace.com attempts to restrict the ability to view underage profiles by preventing older users from accessing them. In effect, the web site filters the content based on answers provided during registration to ensure that only minors of certain ages can view other profiles from that age group. This would almost certainly qualify as meta-information under the Roommates.com decision, and would bump MySpace out from under the protection of Section 230.
If a sexual predator gives a false age on MySpace.com and then lured a victim from the site, would MySpace then be open to claims of negligence in the publication of the information? A federal district court in Texas answered that question in the negative.
An en banc panel of the Ninth Circuit affirmed the holding of Roommates.com, reasoning that the website was not immune under 230(c) for the questions it asked in its dropdown menus, because the website qualified as an information content provider. (The Ninth Circuit subsequently ruled in 2012 that the website's prompting, sorting and publishing of information to facilitate roommate selection is not forbidden by the FHA or FEHA.)
Legal Considerations for Social Networking Users
Social networking users don't enjoy any of the immunities granted to social networking sites under the law, so they should be careful to always act appropriately when posting messages or files to the sites.
The main areas where users can get themselves into trouble are through the posting of defamatory content or content that infringes on intellectual property rights.
Since no statutory immunities exist to shield users, the standard laws pertaining to defamation and infringement apply. If a user is found to have posted defamatory content, the user will be liable, even if the site can escape liability under Section 230. Similarly, if a user posts material that infringes on another's copyright, the user will face liability for the infringement, despite the site's potential safe harbor under Section 512.
The First Amendment and state constitutional free-speech provisions often come into play in these types of defamation suits. Several of the most prominent cases regarding user liability for material posted on social networking sites have dealt with students suffering criminal charges or adverse consequences at their schools as a result of allegedly defamatory, threatening or indecent messages posted on social networking sites.
The most important of these student cases is a case decided by the Indiana Court of Appeals, A.B. v. State. In that case, A.B., a minor, posted expletive-filled comments on a fake MySpace page purporting to belong to A.B.'s former middle school principal. The principal reported the site to the authorities, and A.B. was declared a "juvenile delinquent" by a juvenile court after the judge found that the comments constituted criminal harassment.
The Court of Appeals reversed, finding that the free-speech component of the Indiana State Constitution protected the comments that A.B. posted. Since A.B. had challenged the school's anti-piercing policy in her post, the court held, the comment was political speech aimed at the principal's policies, and protected under the Indiana Constitution.
In two other cases, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, the students were not so lucky. In both cases, the school's punishments against students for creating fake MySpace pages in the names of their respective principals were upheld by federal district courts. After the Supreme Court's decision in Frederick v. Morse - the infamous "Bong Hits 4 Jesus" case, which held that the First Amendment does not prevent educators from suppressing student speech, at a school-supervised event, that is reasonably viewed as promoting illegal drug use, the decisions are unlikely to be overturned on appeal.
Also keep in mind that many states are passing laws that create obligations to verify a user's age. Any fraud or circumvention of these requirements could have repercussions for social networking users in addition to the usual charges of defamation and infringement.