Your Site, Others’ Misbehavior: The Two U.S. Safe Harbor Laws

This is a post by guest blogger Jonathan I. Ezor.

One of the most valuable features of the Web as a business medium is interactivity, the ability of a company to create a dialog with its customers (current and future) via the Web site. At the same time, though, a company may be concerned that users’ actions on their site could expose the company to liability. Whether from defamatory statements about competitors or individuals on a Web site message board, inappropriate language or suggestions in a chat area meant for minors, or copyrighted material posted without permission to the comment area of a blog, users’ interactions could lead to legal risk for the site owner, whether or not it knew or approved of the improper postings or actions.

Early in the development of the commercial Web, there were a number of lawsuits brought against Web site owners and service providers, seeking to hold them liable for actions of users. The courts, faced with situations that had no real-world analogues, decided these cases in a variety of ways, which left the hosting businesses in a position of not knowing whether they would be better off editing every post or leaving their sites completely unpoliced.

After a particularly troubling decision holding online service provider Prodigy liable for an anonymous and allegedly defamatory posting in its Money Talk message board, Congress finally decided to act, understanding that the lack of clarity and risk of liability could seriously impede the development of the Internet as a business and communications medium. The result has been two major “safe harbor” laws, the general safe harbor for content liability in
47 U.S. Code Section 230 (passed as part of the otherwise-unconstitutional Communications Decency Act of 1996), and 17 U.S. Code Section 512(c), a specific safe harbor for copyright infringement enacted as part of the Digital Millennium Copyright Act of 1998.

The two laws, though, are sharply different not only in what they cover, but in the requirements they place on companies seeking to take advantage of them.