November 2009

SPECIAL ALERT

Facebook’s Claim of Ownership of Posted Content Does Not Destroy CDA Immunity

The New York Supreme Court recently granted Facebook, Inc.’s motion to dismiss a pending defamation action because the court concluded that Facebook was immune from liability under the Communications Decency Act (“CDA”) as an interactive computer service.  The plaintiff had alleged that four of her high school classmates created a Facebook group in which her classmates posted defamatory statements regarding the plaintiff.  After Facebook moved to dismiss the case based upon CDA immunity, the plaintiff argued that because Facebook’s Terms of Use grant Facebook an ownership interest in the alleged defamatory content, CDA immunity is unavailable to Facebook.  The court disagreed and concluded that ownership of posted content is irrelevant to a determination of whether CDA immunity should apply.  The court held that as long as the defendant is an interactive computer service and the allegedly defamatory content is provided by a third party, the defendant is immune from liability under the CDA.

TIP:  Notwithstanding the outcome in this case, websites and other user-generated content aggregators should consider whether there exists a true need to own submitted content, or whether a license would suffice.