Articles
Potential Liability in Setting Up a Blog By Mary Beth Ayvazian, Esq.
In setting up a web-blog service, one needs to address liability from two major fronts. It would not only be important to explore exposure from potentially infringing content (whether under copyright, trademark, defamation, or privacy theories) posted by members, but the need to protect the service from suits brought by the members themselves.
The first step would be to classify the type of intermediate online service to operate to determine potential liability from either aforementioned front. The issue boils down to a determination of how intermediaries are categorized and that, in turn, is determined by the degree of control an intermediary asserts over the content sent by its users.
There are generally three different classifications: that of common carrier, publisher and distributor. Common carriers have absolute immunity. Publishers are liable for what they choose to publish. Distributors (such as bookstores) are not subject to liability unless they have specific knowledge that they are participating in the transmission of infringing material. (Robyn Roseman and natasha Brison, Third Party Defamation Liability for ISPs at http://gsulaw.gsu.edu/lawand/papers/sp98/roseman.html) Classification would likely be determined by the role assigned to contributors of content and the relationship with the intermediary. If, for example, members are labeled "co-bloggers", they would have an equal role and editorial control over the content posted. Not only would they then share in revenue generated by advertisements, but they would also share in any liabilities caused by infringing postings. The classification ostensibly would be that of "publisher" and as such all would be liable for what they choose to publish. If members are classified as "guest bloggers", a different set of rules may then apply, but this may not necessarily change potential liability as a court may still determine editorial control of the content posted. Even though the blog host might assert that editorial control over postings is very basic, the fact that there exists any control at all is what is determinative. The court will look at the proximity of the connection between the Blog host and the alleged infringing material. For example, in Cubby, Inc. v. Compuserve, 776 F.Supp. 135 (1991), action was taken against Compuserve for alleged defamatory remarks made by a subscriber. In this case, Compuserve was not held liable because the remarks appeared through a service offered by a third party. Therefore the company was considered a distributor and not a publisher of content. The court argued that Compuserve, in effect, had no editorial control over the defamatory material. Compuserve was too far removed from the wrongdoing and the wrongdoer.
In addition, a classification of "distributor" would not necessarily shield a blog host from potential liability through a vicarious liability theory. The last word from a court of competent jurisdiction was that of the Supreme Court in Barrett v. Rosenthal, 47 USC 230 (2006), which found that section 230 of the Communications Decency Act did not provide immunity for the classification of "distributor".
The courts and the legislature find that the online intermediary's ability to control the acts of its users, regardless of its label, is a determinative factor in assigning liability for infringements. In looking more closely, one cannot then apply responsibility equally among the types of online intermediaries as they all have varying degrees of control over the content either stored or transmitted through their services and network facilities. It would seem that the amount of responsibility an online intermediary should carry directly corresponds to the amount of control it actually had over the copyrighted, defamatory, or otherwise infringing material. The type of content involved is, in practical terms, irrelevant.
