I have received at least a couple of questions from readers about the legal issues surrounding blogging. Adrianos Facchetti has been kind enough to give us some information about the Communications Decency Act of 1996 (“CDA”).
By Adrianos Facchetti:
You’ve just been sued for defamatory statements made on your blog. What do you do? How do you prevent it? My goal is to answer these questions in a series of posts on Blog For Profit.
The Communications Decency Act of 1996 (“CDA”) is a federal law that is extremely protective of online speech. It was originally intended to regulate pornography on the internet, but later was interpreted by courts to immunize internet service providers from torts committed by users of their systems. Specifically, it says:
“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.”
This means generally that a plaintiff cannot sue the operator of a site for defamation for comments made by a third party. Therefore, suppose you author a blog called “Excellent Blogger” and offer general advice to bloggers. If a person leaves a defamatory comment and you happen to post it to your blog, the CDA will shield you from liability. However, if you alter the meaning of a comment in a significant way, a court may determine you to be an “information content provider,” which means you wouldn’t be protected under the CDA. As a result, if you choose to allow comments on your blog, do not alter the meaning of them whatsoever.
Keep in mind that the CDA will not protect you for information that you create and publish on your blog. Suppose you use WordPress or Typepad to write a consumer watchdog-type blog about mortgage lending practices. While WordPress or Typepad would likely be immunized from liability for content you produce on your blog, the CDA would not apply to you since you would be characterized as an information content provider.
The bottom line is that the CDA acts as a shield to those who merely provide a forum for others to speak about given subjects. If you are the original source of the content, the CDA will not apply to you and therefore will not protect you.
Courts have interpreted the CDA rather broadly for years, but the clear trend is to limit its scope. This means that more and more blog/sites may be subject to tort liability in the near future. While courts struggle to understand and define the CDA, it is imperative that you take preventive measures to protect your bottom line. I will discuss some steps you can take to avoid liability for defamation on your blog in upcoming posts.
Adrianos Facchetti is licensed to practice law in California only. This blog post does not constitute legal advice, nor is it intended to create an attorney-client relationship.