Blog Questions and Answers

Guidance From Roommates.com

What does the recent Court of Appeals ruling in →Roommates.com mean for bloggers and citizen journalists? — Geanne

[From Geanne:  Roommates.com or Roommate.com?  The Court notes that though the Web site is called “Roommates.com”, the “company goes by the singular name ‘Roommate.com, LLC’”.]

Response By Levine Sullivan Koch & Schulz:

(Posted on May 9, 2008.)
The Roommates.com decision probably does not pose significant risk to bloggers and citizen journalists as a general matter.  But it does help to identify certain actions that could lead to trouble.

Generally, citizen journalists and bloggers have powerful protection against lawsuits relating to posts to their sites by third parties.  That protection exists under Section 230 of the Communications Decency Act ("CDA"). 

The CDA is a federal statute that provides ISPs and Web site hosts with two independent bases of protection against liability.  The first, found in Section 230(c)(1), states that “providers and users” of “interactive computer services” - which have been held to include Web site operators and blogs - shall not be treated as the “publisher or speaker” of information provided by another “information content provider.” The statute defines “information content provider” as a person or entity who is “responsible, in whole or in part, for the creation or development” of the information in question. 

What this means is that if a third party posts defamatory (or otherwise unlawful) information on a Web site, the Web site operator generally won’t be legally accountable so long as he or she isn’t responsible “in whole or in part” for creating or developing that information.  There are exceptions.  The provision provides no immunity for violations of federal criminal, intellectual property, or communications privacy law.

The second, Section 230(c)(2)(A), protects the “provider or user of an interactive computer service” from the imposition of liability based on “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” In other words, a Web site host may edit, delete or restrict access to any content that he or she believes to be objectionable and can’t be held liable for that editing.

It is important, however, to note that the statute provides no protection whatsoever as to the original author.  That is to say, if a blogger or citizen journalist is responsible “in whole or in part” for authoring a defamatory (or otherwise objectionable) post, he or she will not be able to take advantage of CDA immunity. 

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, the Ninth Circuit Court of Appeals considered allegations brought by a California Fair Housing organization.  The Fair Housing organization argued that the Web site Roommates.com was violating the Federal Fair Housing Act ("FHA") by directly posting, and facilitating users posting, information that expressed discriminatory preferences with regard to housing choices.  The FHA makes it unlawful to publish such discriminatory housing ads.

In its defense, Roommate.com argued that under Section 230(c)(1) it was immune to legal claims because the objectionable information was provided by third-party users, and thus Roommate.com couldn’t be treated as the “publisher” of the information.

The Court disagreed and decided that even though users created their own profiles, Roommate.com couldn’t completely disclaim responsibility for the objectionable text.  The reason:  the Web site had specifically solicited the illegal content by asking questions that could be (and perhaps could only be) answered with discriminatory statements, and provided pull down menus that provided users with a pre-populated list of responses, choices that appeared to violate the FHA.  As a result, the Web site was responsible, at least in part, for the development of the objectionable content and was therefore not immune under the CDA.  The Court found the Web site was immune, however, for statements that Web site users posted in their profiles’ free-form “Additional Comments” section.  Roommate.com was in the clear with respect to those free-form third-party posts, the Court said, because the Web site gave no indication that users should post illegal content and because there was only minimal “bleed over” from the solicitation in the site’s pull down menus.

Unfortunately, the Roommates.com opinion also contains “loose language” regarding the loss of CDA immunity for “encouraging” others to post unlawful content.  While the Court found Roommate.com immune for statements users posted in its “Additional Comments” section, the Court finished its analysis with the disturbingly vague statement: “If you don’t encourage illegal content, or design your Web site to require users to input illegal content, you will be immune.” While the court’s direction to avoid “encourag[ing] illegal content,” is disconcertingly imprecise, other statements in the decision add a measure of relief to bloggers and citizen journalists.  The Court acknowledged that there will always be close cases where a “clever lawyer could argue that something the Web site operator did encouraged the illegality,” and the court indicated the judges should resolve such “close cases” in favor of finding immunity.

Practical Tips For Bloggers and Citizen Journalists:
• 1.  Bloggers and citizen journalists with Web sites that provide drop-down menus should be sure that they’re not providing users with selections that encourage the posting of illegal content.  Providing users with illegal content choices can be perceived by a court as essentially putting words into the user’s mouth.  To the extent that those words are unlawful, a blogger or citizen journalist may be held responsible as the publisher. 

• 2.  Reduce the risk of losing Section 230 protection by making the selection of content for third parties voluntary — for example, by including a “no response” option. 

• 3.  Avoid posting statements that appear to encourage site users to post unlawful content.  Those encouraging statements could themselves be actionable ("Please tell me if you’ve also been ripped off by Company X.") Plus, such statements may unwittingly invite a lawsuit from a plaintiff seeking to hold a blogger responsible for the contents of the third-party’s post.

Thank you Levine Sullivan Koch & Schulz for providing helpful information and advice in the wake of this complex court opinion. — G.

Photographing Private People

What do you advise photojournalists when it comes to taking pictures of private people, and when are releases necessary or advisable?  Would any varying considerations apply to citizen journalists and bloggers and social network participants who take photos in their local communities and post them online? — Geanne

Response By Levine Sullivan Koch & Schulz:

(Posted on April 14, 2008)

The use of photographs of “private persons” raises several types of issues:

(i) concerns about intellectual property-type rights that the person may have in how his/her likeness is used;

(ii) concerns about whether use of the photo might give rise to an invasion of privacy claim;

(iii) concerns about whether the context in which the photo is used might portray the person in a false light or other defamatory way;

(iv) concerns about an unlawful intrusion in the course of taking the photo.

For the most part, whether the photograph ultimately will be used in a highly circulated print publication or an online blog, the consideration of each of these issues would be similar.

1.  Intellectual Property Concerns

The right of publicity attaching to a person’s name or likeness can vary from state to state because this issue is a matter of state, not uniform federal, law.

Generally, under most states’ laws, a person’s name or likeness, including photographs of the person, may not be used for commercial purposes without the express written consent of that person.  The elements that typically comprise a claim for violation of a person’s right of publicity are:  (i) use of the plaintiff’s identity (including photographic likeness); (ii) for the advantage of the user; (iii) without consent; and (iv) to the detriment of plaintiff. 

But there’s important First Amendment protection for news photos.  The First Amendment not only protects use for news purposes, but generally permits unconsented use of a person’s likeness in “commentary, entertainment, [and] works of fiction or nonfiction.”

To the extent that a photograph is used with and is reasonably related to an item of news or information, i.e., a report concerning a local happening and the photograph was taken at that event, the use typically would be protected by the First Amendment and no release would be necessary.  If, however, the photo might be used in connection with more commercial offerings, such as on tee-shirts, calendars or posters, then obtaining a model release from persons depicted is advisable.

2.  Invasion of Privacy Concerns

Many but not all states have privacy laws that protect private individuals from the publication of private facts about them.  Some courts have described privacy law as protecting individuals from “the unwarranted publication of intimate details of one’s private life which are outside the realm of legitimate public interest.” Generally, the elements of a claim for invasion of privacy, which can vary among the states that recognize privacy claims, are: (i) a public disclosure (ii) of a private fact (iii) which would be offensive and objectionable to a reasonable person and (iv) which is not of legitimate public concern. 

Including a photograph in a blog or social networking site usually would amount to a sufficient public disclosure.  Thus, the success of a privacy claim will turn on the more subjective factors. 

Generally, photographs created in public places are considered as not revealing private facts because whatever is depicted was taking place in public.  However, this presumption is not universally accepted, so privacy issues should be considered even for photographs created in public places. 

Typically, courts find that information about a private person’s sexual relations, illnesses, finances and the like to be private matters not of legitimate public concern.  To the extent that a photograph reveals private facts (for example, depicting a private person being administered to in an AIDS clinic), publication of the photograph without consent of the person depicted could give rise to an invasion of privacy claim.  If a photojournalist or blogger desires to publish such photos, permission of the subject should be sought.  Moreover, if permission is obtained, it is always prudent to get that permission in writing (such as a release) signed by the person granting permission.

3.  False Light Concerns

Many but not all states recognize claims sounding in the theory of “false light.” False light claims are similar to defamation claims, but involve a damaging context of a publication rather than specific false statements.  For example, use of a photo of a person standing in from of the local school to illustrate a story headlined “New school building is a haven for drug dealers” could present the person depicted in a false light (unless that person was in fact a drug dealer). On the other hand, a photograph of that same person standing in front of a local school used in connection with a story about how local residents take pride in the new school building would raise no concern. 
Generally, the elements of a false light defamation claim are (i) a person discloses to others information about the depicted person that is actually false or creates a false impression, and (ii) the information was understood by persons receiving the information as stating or implying something that would have a tendency to harm the depicted person’s reputation. 

Depending on whether the depicted person is a public or private figure, and whether the subject of the blog is a matter of public or private concern, there may be additional requirements needed to establish liability, such as a showing that the blogger knew that the published statement was false or recklessly disregarded whether the depicted person was portrayed in a false light.

To minimize exposure to false light claims, citizen journalists should take care to accurately describe what is depicted in the photographs that they use to accompany their writings.  It is a common practice that after the initial use of a photograph is made, the photograph is archived to be used as a stock photo.  The exposure to false light claims often arises when a stock photo is reused in an entirely different context then the context for which the picture first was created.  A signed photo release authorizing use of the depicted person’s image in connection with any and all uses and releasing claims in connection with such use will generally insulate against false light and other types of claims.  However, the pressures of breaking news, and the realities of how photos are created, make it unlikely that such releases will be obtained.  Accordingly, it is prudent for bloggers and citizen journalists to review the context in which they post their photos online, and be on the lookout for unfavorable but unintended messages conveyed by their use of a particular image with a particular story.

4.  Intrusion

The first three considerations relate primarily to how a photograph gets used after it is created.  However, when shooting photos of private people in local communities, it is prudent to keep in mind that in some circumstances there can be restrictions on even shooting the photos.  Some states’ laws provide that “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for the invasion of his privacy, if the intrusion would be highly offensive to the reasonable person.”

Some states require that there be a physical trespass before the prohibition against intrusion will apply; other states permit intrusion claims whether or not a physical premise was unlawfully entered.  Circumstances that could give rise to an intrusion claim include accompanying a paramedic into someone’s house to take pictures of her administering first aid and shooting pictures of a patient inside an ambulance.

Thank you Levine Sullivan Koch & Schulz for this very thoughtful response. — G.

Reader Question Re. Satire and Legal Risk

What are the legal ramifications for a blog that is intended as a satire of real people, not necessarily of politicians but of people who have some public exposure, is obvious as satire or a parody, but includes made-up quotes by these people? Could a blogger potentially be at legal risk for defamation or misrepresentation even though the purpose and context of the site is as satire and parodies?

Thanks.

Geanne’s Reply, with Input from George Freeman of the New York Times

Thank you for this parody question, and thank you to George Freeman, vice president and assistant general counsel at The New York Times and an adjunct professor at CUNY’s Graduate School of Journalism, for your input on this Question of the Week.

There is a parody defense to a defamation claim.  See the Rule 1 Defamation Link.  The parody defense also can be effective against a claim of intentional infliction of emotional distress.  The United States Supreme Court upheld the parody defense in the landmark 1988 opinion, → Hustler Magazine v.  Falwell.

However, depending upon the circumstances, a person who posts information, even in an attempt at satire or parody, could be at risk in a libel lawsuit.  The question isn’t the intent of the author to create parody or satire.  Instead, what’s at issue is whether a reasonable reader would believe that the made-up information is true.  If so, the information could be damaging to the reputation of the subject and defamatory.

But clues, context, and unbelievable representations of fact can all contribute to a successful parody defense, as was the case in → an interesting decision by the Supreme Court of Texas.

Clear labels indicating the material is parody or satire can help reduce legal risk.

But the more believable the false information, the greater the legal risk.

When it comes to parody as a libel defense, according to George Freeman, vice president and assistant general counsel at the New York Times, “The most important thing is a blog is no different than a newspaper or television report . . .  Parody is protected if it clearly is a parody.  The question is really whether a reasonable reader” could understand the false content at issue to be describing actual facts.

Important tip for bloggers, social network users, and hyper-local community Web site participants:

Freeman points out that if the person being parodied is a private person and not well known to the audience, then it could be especially difficult for an author to use a parody defense to counter a libel claim.  That’s because the less a reasonable reader knows about a person being parodied, the more difficult it can be for that reader to distinguish between fiction and fact.

— Geanne

Reader Question Re. Posting About Suspected Neighborhood Criminals

What are the legal ramifications, if any, of a neighborhood yahoo.com group posting online the photo, name, and other information about individuals who are suspected of (but not arrested or convicted of) crimes in that neighborhood? Is it ok to post any or all of this information? The yahoo group is open to neighborhood members only.

The latest posting of such information included commentary stating that although the suspect had not been arrested, he was “guilty as hell” and “destroying the neighborhood.” His photo was snapped by a neighbor, apparently as he walked through the neighborhood, and then posted on the website in a “Wanted"- type posting that included his full name, photo, and a description of the crime he allegedly committed. The posting said that he had been released without arrest because there was insufficient evidence for an arrest, but neighbors were advised to call 911 if he was seen.

Thanks for your thoughts and advice about this.

Geanne’s Reply, with Input from Eric P. Robinson

Thank you for this interesting question and thank you Eric P. Robinson, staff attorney at the Media Law Resource Center, for your contribution.  For educational purposes only:

In terms of legal implications, and ethical and fairness considerations aside, the behavior you describe seems quite risky.  Posting even in a narrow neighborhood environment still means publication to one or more third parties, which can be sufficient to support a defamation claim. According to your facts, the identified individuals are merely suspected and that’s a big concern. The information being posted could turn out to include unsubstantiated rumors and falsehoods.  If some of the information being posted is damaging and can be proven false, that’s in the red zone in terms of libel risk.

False light, a privacy tort, might possibly be another legal concern, depending upon the facts and jurisdiction, especially regarding the posting of the photos linking identifiable individuals with allegations of criminal behavior.

In either case, truth would be a complete defense.

(See the Rule 1"defamation" link for more information about defamation law.)

Eric Robinson, staff attorney at the Media Law Resource Center, adds that, in addition to the above:

1. If the picture was really taken when the man was on a public street, he probably cannot sustain an intrusion claim.  But if he was someplace where he had a reasonable expectation of privacy—his yard, perhaps—he may be able to make such a claim.
2. Depending on the context, the statement that the man is ‘destroying the neighborhood’ may be considered opinion, which is not actionable for defamation.  A similar argument could be made about the statement that he is ‘guilty as hell,’ but that would be a much tougher argument to make.
3. The Communication Decency Act’s ‘safe harbor’ provision for ‘interactive computer services’ (47 U.S.C. Sec. 230) may make the Web site (and the administrator of the Yahoo group) immune from suit, depending perhaps on how actively posts are edited.
4. The statement advising neighbors ‘to call 911 if he was seen’ may constitute some sort of harassment under state or local law (or perhaps incitement).  There’s also a new, semi-obscure federal law prohibiting anonymous harassment on the Web (47 U.S.C. Sec. 223), which may be applicable.”

— Geanne