Online Service Providers Need to Warn Users of Potential Dangers

The Communications Decency Act of 1996 (CDA) was the first notable attempt by the United States Congress to regulate pornographic material on the Internet.  The anti-free speech provisions of the CDA were ultimately struck down by the U.S. Supreme Court.  However, Section 230 of the CDA remains and provides protection to online intermediaries that host or republish speech.

Section 230 provides 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 [user].”  47 U.S.C. § 230.  Online intermediaries, which include any online service that publishes third-party content, are therefore given broad protection against a range of laws (state and federal) that might otherwise be used to hold them responsible for the conduct of users of their services.  This protection has recently been challenged in federal courts by users of the online services that were victimized by other users of the same services.

In a recent Ninth Circuit decision, the Court, in an unpublished decision, found that a warning that a website owner might be required to provide under state law is not protected under the CDA.  Beckham v. Match.com, No. 2:13-cv-97, (D. Nev. May 29, 2013). In Beckham, the plaintiff sued Match.com for negligence on a failure to warn theory of liability after she was attacked by a man that she met on the online service.  The plaintiff claimed that the dating website knew that the man was dangerous and did not warn her as required by state law.  Match.com sought dismissal of the complaint and relied upon the protections of the CDA.  Specifically, Match.com argued that it cannot be liable for the conduct of a third-party user. The District Court agreed and dismissed the complaint.  The District Court reasoned that even though the plaintiff may attempt to focus the alleged wrongdoing on Match.com, what plaintiff is actually alleging is that she was eventually harmed because of third-party content published by Match.com on its website.

On appeal, the Ninth Circuit reversed the District Court and concluded that the warning required by state law cannot be considered third party content because it would be published by Match.com and not the user.  Therefore, the required warning would be outside the scope and protections of the CDA and Match.com could be held responsible for negligence under a failure to warn theory of liability.  Pennsylvania law also provides for a claim for negligence under a failure to warn theory of liability.  Accordingly, as a result of the Beckham decision and others, any company operating online services that receives serious complaints or information about users’ dangerous conduct should take affirmative steps to warn other users to avoid liability.

Contact Gary Dadamo at ghd@mbm-law.net or our Litigation Team at 412.242.4400 if you have any questions. Our Litigation Team also assists our clients in avoiding potential claims, and is skilled in handling contract disputes, construction litigation, corporate litigation, director/officer liability, shareholder disputes, professional malpractice, and business tort claims.

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