The issue of the responsibility and liability of online service providers, such as internet platforms that are based on user generated content, continues to be a hotly debated subject in US court rulings.
Although under US law, section 230 of the Communication Decency Act sets out the key "Safe Harbor" principle that provides online services with immunity from liability concerning the actions of their users (with certain exceptions, such as infringement of intellectual property), more and more courts are giving a narrow interpretation to this principle, thereby broadening the potential liability of online service providers.
At the beginning of the month, a US court of appeals ruled that section 230 does not protect a website from being sued over failing to warn users of potential harm that could come from other users on the site. In another ruling from this month, a US court declined to dismiss claims that Facebook should be held responsible for violating a person's publicity rights, under the theory that publicity rights are covered under intellectual property (and therefore are exempted from the Safe Harbor principle) . In another ruling, a California appeals court determined that Yelp is responsible for removing reviews from its site that the court found defamatory.
As illustrated in these recent rulings, courts are demonstrating a reluctance to uphold the Safe Harbor principle in various circumstances, thereby requiring the service provider to adopt a more “proactive” approach with respect to user behavior and content. In practice, these rulings reflect that online service providers should apply an increased level of scrutiny and monitor user activity on a more “proactive” basis, as reasonably required, in order to mitigate the associated risks.