Retaining Control of Your Website

Title:
Retaining Control of Your Website
Publication:
Metropolitan Corporate Counsel
Practice:

Imagine this scenario. Your client, a fortune 100 company, advises you that their Web site has been encrypted with unwanted remarks, links to other sites, web graffiti, and unwanted sound clips. A software package and messaging service, downloadable from the Internet, has provided the means for third parties to post this offending subject matter on your client's Web site. The client is understandingly upset; the integrity of their Web site has been violated. While they have managed to develop a technical fix to remove and disallow the posting of the unwanted information, they want you to barrage the software company that owns the software package with every claim in your legal arsenal. In this newly evolving arena of Internet jurisprudence, however, you are just a bit uncertain as to the availability of any maintainable causes of action.

The good news is that a number of state and federal avenues of relief may provide means to impose liability on the software company for the actions of third party software users. First, a claim may be made that traditional defamation jurisprudence imposes broad liability for the publication of unwanted remarks, web graffiti and the like.1 If the offending material is false, or is reasonably susceptible of a defamatory meaning, and otherwise meets traditional defamation criteria,2 liability may be found. Trade libel may provide a second avenue of relief. Such a claim may be made by asserting that the posted subject matter so offended the business community that customers stopped dealing or contracting with your client.3 A third claim may be based on improper interference with prospective economic advantage. That is to say, the posting of offending subject matter on the Web site dissuaded prospective clients from using your client's goods and/or services. Maintenance of this claim would require a showing that, unlike the public bulletin board postings available on AOL, the third party posting was effected in a clandestine manner, and as such, constituted malicious conduct, not mere ill will or spite.4 These state law claims are by no means exhaustive. Relief may additionally be sought under the doctrines of foreseeable misuse of a product, state unfair competition, misappropriation and trademark infringement.

Several defenses may be tendered by the software company in response to claims based on defamation, trade libel and improper interference with prospective economic advantage. As one of these defenses, the software company may contend that third party transmission of offending information via their software package is protectable public speech worthy of heightened First Amendment protection.5 To rebut this contention, your client must make a showing of "actual malice,"6 that is, that the offending materials were published with knowledge of their falsity or with reckless disregard for their truth. 7 This is a difficult standard to meet. It may be circumvented, however, by attacking the "public" nature of the speech. Here, the offending subject matter was posted by way of a Web site instead of a newspaper editorial, book, pamphlet or Internet service provider bulletin board. This presentation of the offending subject matter in a veiled manner using a less widely disseminated medium, is readily differentiated from conventional public forums and should not be construed to be public speech.

Likewise, the software company may assert that posting of the offending material on your client's Web site is Internet speech. This form of speech has been held by Reno v. American Civil Liberties Union8 to be entitled to the highest degree of First Amendment protection. Reno is by far the most important decision relating to First Amendment law on the Internet. The Reno decision established that Internet communications are entitled to the broadest First Amendment protection accorded traditional media such as books and newspapers, rather than the more limited protections provided broadcast media. Internet-transmitted communications are afforded the same First Amendment protection as a library, or news vendor. Obscene speech not protected by the First Amendment is, on the other hand, not protectable Internet Speech. 9 The degree of First Amendment protection accorded will be determined by the content of the offending material posted on your client's Web site.

The software company may additionally assert that, by virtue of their software service, they are subject to the broad First Amendment protection afforded Internet service providers. In Stern v. Delphi Internet Services Corp., 626 N.Y.S.2d 694 (1995), radio celebrity Howard Stern sued Delhi for using his photograph without permission in an advertisement touting an on-line bulletin board. The court held that Delphi, which provides "hard core" news, was a news provider. As such, Delphi was entitled to the same First Amendment protections as a library, news vendor, newspaper or television network. The services offered by the software company would determine the availability of the Internet service provider defense. Availability of that defense would turn on whether the software company simply offers downloadable software, or has a more general site offering news and the like, which is freely accessible to public. 10

The software company may offer Section 230 of the Telecommunications Act of 1996 as a defense against imposition of liability for third party actors. Section 230 (c)(1) of the Telecommunications Act states: "[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." An "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 12 Internet service providers are thus immunized from liability by Section 230 for information that originates with third parties. 13 Accordingly, the liability of the software company may well depend upon the scope of its services. <>

Several federal claims are available for assertion by your client. Copyright law provides basis for asserting that, by creating message overlays on third party protected Web sites, the software package creates an infringing derivative work, 14 or an unauthorized frame or link. 15 To prevail on a derivative work claim, your client must prove that the message overlay physically incorporates a portion of the underlying copyrighted Web site. 16 Success on linking/framing claims would most likely depend on the propriety of the link/frame. 17 Each of these claims may, however, be subject to the "fair use" defense. To maintain this defense, it must be established that the third party posting of the offending subject matter was for a non-commercial purpose, the work was unpublished, it was primarily informative rather than creative, and the small portion of the Web site that was used did not decrease the potential market for, or the value of, the protected Web site. 18 Additional relief may be available via unfair competition and trademark dilution channels under sections 43(a) 19 and 43(c), respectively, of the Lanham Act. 20<>

There exist numerous theories upon which to predicate liability of the software company for violating your client's Web site integrity. The representative claims herein presented are by no means exhaustive. Additional claims based on particular factual circumstances are often available. Myriad avenues for relief will emerge as the law governing these Internet-related issues continues to evolve. <>

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1See e.g., Rainer's Dairies v. Raritan Valley Farms, 117 A.2d 889, 891 (N.J. 1955). <>

2 Traditional defamation criteria generally require a plaintiff to prove: (1) a false and defamatory statement of fact concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) damages. See e.g., Ditzel v. University of Med. and Dentistry of N.J., 962 F. Supp. 595, 605 (D.N.J. 1997) citing Romaine v. Kalinger, 537 A.2d 284 (N.J. 1988); National Nutritional Foods Ass'n. v. Whelan, 492 F. Supp. 374 (S.D.N.Y. 1980). <>

3Crawford v. West Jersey Health Sys., 847 F. Supp. 1232, 1239 (D.N.J. 1994).<>

4See e.g., Greenbelt Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 90 S. Ct. 137, 26 L. Ed.2d 6 (1970). 5See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59, 105 S. Ct. 2939, 86 L. Ed.2d 593 (1985) (speech on matters of public concern is at the heart of First Amendment jurisprudence and requires heightened constitutional protection in the defamation context). <>

6New York Times Co. v. Sullivan, 376 U.S. 254, 285-86, 84 S. Ct. 710, 11 L. Ed.2d 686 (1964). <>

7Your client, as a fortune 100 company, will likely be construed as a public figure subject to the "actual malice" standard. See e.g., Dairy Stores, Inc. v. Sentinel Publ'g. Co., Inc., 465 A.2d 953, 955 (N.J. Super. Law Div. 1983) citing Lawrence v. Bauer Publ'g and Print., Ltd., 446 A.2d 469 (N.J. 1982). <>

8In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 129 L. Ed.2d 874 (1997), The United States Supreme court struck down two provisions of the Communications Decency Act of 1996 ("CDA") prohibiting the knowing transmission of indecent - as opposed to obscene - messages to minors in the Internet. <>

9 In contrast to the Reno decision, in Apollomedia Corp. v. Reno, 19 F. Supp.2d 1081, (N.D. Cal. 1998), aff'd __U.S.__, 119 S. Ct. 1450, 143 L. Ed.2d 538 (1999), the Court affirmed a ruling that a CDA provision criminalizing obscene and indecent communication made with the intent to annoy was constitutional, but limited its scope to obscene communications not protected by the First Amendment. <>

10Also consider a potential defense sanctioned by Bernstein v. U.S. Dept. of State, 922 F. Supp. 1426 (N.D. Cal. 1996) where the court held that source code language, like music or foreign language, is First Amendment protectable speech. <>

1147 U.S.C. § 230 (1996). <>

1247 U.S.C. § 230(e)(2) (1996). <>

13In Zeran v. America On Line, 958 F. Supp. 1124 (E.D. Va. 1997), aff'd, 129 F.3d 327 (4th Cir.), cert denied, __U.S.__, 118 S.Ct. 2341, 141 L. Ed.2d 712 (4th Cir.), the court interpreted an interactive computer service as one that offers a connection to the Internet as a whole, allowing subscribers to access information communicated and stored only on each computer service's individual proprietary network. <>

14The Copyright Act defines a derivative work as "[a] work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship." 17 U.S.C. § 101 (1999). <>

15 Linking involves the ability to move from one web site to another by clicking on highlighted text or graphics. The link may also be framed, that is, the linked site is retrieved as a window within the frame of the original linking site. In this instance, the address of the original linking site, advertisements, and such other information as the original linking site chooses to use, remains in a "frame" surrounding the linked sites content. <>

16See Lewis Galoob Toys, Inc. v. Nintendo of Am., 964 F.2d 965, 967 (9th Cir. 1992). <>

17 In these cases, web site owners usually rely on copyright, trademark and unfair competition laws to limit access or control how the site is linked to, and by whom. To date, these lawsuits have usually resulted in settlements removing "deep" links or frames. See e.g. Shetland Times, Ltd. v. Jonathan Wills and Zetnews, Ltd., Sess. Cas. (Oct. 24, 1996) (Lord Hamilton, J.); The Washington Post Co., et al. v. Total News, Inc. et al., 97 Civ. 1190 (PKL) (S.D.N.Y. 1997). <>

18 17 U.S.C. § 107 (1999). <>

19 15 U.S.C. § 1125 (a) (1999). <>

20 15 U.S.C. § 1125 (c)(1) (1999). <>