Client Alert: Avoiding Liability on Social media and the Internet

October 9th, 2014
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The Georgia Court of Appeals recently issued the first opinion by a Georgia appellate court interpreting a federal law called the Communications Decency Act of 1996.

While the court’s decision in Internet Brands Inc. v. Jape does not differ from prior constructions of the Act by courts in other jurisdictions, it provides important pointers for all businesses and individuals who foster communication on the internet or social media sites to avail themselves of the immunity provided under the Act and avoid liability based on content provided by third parties.

Negative and hostile commentary on social media platforms, website comment sections, consumer review websites, and other websites that encourage user interaction can give rise to litigation based on various causes of action including defamation, tortious interference with contractual or business relations, negligence, and business torts such as unfair or deceptive trade practices.

Internet Brands involved a defamation claim brought by Jape based on comments posted about him on a website owned and operated by Internet Brands by another user of the website.Internet Brands moved for summary judgment arguing that it was entitled to immunity from liability for any state law cause of action under the Act.

The Act states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The Act defines the term “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

The central question in Internet Brands was whether Internet Brands, as the owner and operator of the website, was an “information content provider.”

The Court of Appeals held that Internet Brands could not be considered the publisher or speaker of the objectionable content because it did not create or develop the content, nor did it transform the posts such that it became the developer or creator.

Accordingly, the court ruled that Internet Brands was entitled to immunity under the Act and could not be held liable for defamation. The protection afforded under the Act extends to all internet “users” and is not limited to internet service providers or website operators. As a result, all businesses and individuals should consider the following three pointers as they seek to increase their online presences and interact with customers and clients through the internet and social media sites.

First, businesses and individuals must remember that the immunity provided by the Act does not apply to content that they create or develop for publication on the internet or social media sites. Second, businesses and individuals who enable content to be published on their websites or social media groups should not alter, edit or contribute to content published by third-parties.  By doing so, the business or individual could be deemed an “information content provider” and lose the immunity provided by the Act.

Lastly, businesses and individuals should keep in mind that they can retain some control over content published on their websites or social media groups without incurring liability. The Act precludes liability for any action voluntarily taken in good faith to restrict access to or availability of material considered to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.