This is a guest blog post by Emma Enriquez, Esq. This post is meant for general information purposes and does not constitute legal advice.
Are you an information content provider? This is a question web developers should know the answer to when working with content providers on their sites. The right answer could save a developer from lengthy lawsuits and damages.
In early November 2010, a federal district court denied Zynga Game Network’s motion to dismiss a complaint brought against it by a consumer. In Swift v. Zynga Game Network, 2010 U.S. Dist. LEXIS 117355 (N.D. Cal. Nov. 3, 2010), a consumer claims that misleading advertisements displayed while she was playing Zynga games enticed her to sign up for “trial” products that she didn’t want in exchange for virtual currency. When she later tried to cancel the products, she was either unable to do so or unduly hassled. Zynga argued that section 230 of the Communications Decency Act (CDA) immunizes it from any liability for misleading advertisements because Zynga didn’t create them. The court did not agree and, for now, Zynga remains a defendant. The case is still in its early stages and Zynga could very well prevail in its defense as the facts of the case further develop. This case, and others that have recently sprouted up concerning liability for site content, are worth watching.
In a case involving Yelp!, a “defamed” dentist sued the consumer review website and a disgruntled consumer for a derogatory posting. The dentist voluntarily dismissed Yelp! after deciding that the CDA probably shielded Yelp! from liability for any untruthful statements posted by the consumer. This case, Wong v. Jing, 189 Cal. App. 4th 1354 (Nov. 9, 2010), continues between the dentist and consumer in a California state courtroom while Yelp! is now free from this litigation. Zynga was probably seeking a similar result with its recent motion.
At what point does a web developer face liability? Here’s the short answer: when the developer “materially” contributes to content. So far, sites like Yelp! have been legally described as “interactive computer service” providers. They create the site and leave the content to others. These content “neutrals” can maintain the site and delete posted content without liability for illegal content by third parties. But if Yelp! decided to help consumers in writing reviews, then it could be relabeled an “information content provider” which could open it up to liability.
This seems easy enough, but the line between “service provider” and “content provider” can quickly become hazy. In a 2008 federal Ninth circuit case involving a housing match site, Roommates.com, the Ninth Circuit found that the online forms Roommates provided to subscribers for posting information opened it up to liability for discriminatory housing violations. And in the recent Zynga hearing, the court found the following allegations to be important: (1) Zynga’s virtual currency offers were part of the controversial advertising and (2) Zynga was responsible for the “design, layout, and format of the special offers.” It will be interesting to see how things ultimately play out.
About Emma D. Enriquez, Esq.: She is a litigator with a passionate interest in the developing web and social media marketplace and a member of the IP litigation team for the California-based firm, Gresham Savage Nolan & Tilden, APC. She can be followed on Twitter at @cyberlaw12.