Social media has expanded rapidly over the past few years, becoming a major medium for both public discussion and for the promotion of products and services. These new uses sometimes create additional speech related liability concerns for companies hosting and using social media. These concerns are supported by a recent spike in claims made alleging defamation, invasion of privacy and other speech torts arising out of the use of social media. Many companies wrestle with the question of whether it is better to create social media policies, or to leave corporate social media use and hosting unregulated. Specifically, some social media hosts are reluctant to create company policies for fear that if the policy is violated, they will be opening themselves up to increased liability. The Federal Communications Decency Act (“CDA”) provides some protection against speech related claims to those providing and using interactive computer services. Hosts and users of social media, blogs and other internet platforms should not be afraid to use those media for business promotion, to create fora for public commentary, or to generate interest in current topics.
The CDA is designed to protect Internet users and providers – websites, blogs, forums, Facebook and Twitter – from being held liable for defamatory, invasive or indecent content published by third parties, as well as the freedom to block, edit or delete the content. As one would expect, however, the CDA does not protect original publishers of actionable content. Therefore, if the user or provider contributes to the unlawfulness of the published material, she or he is not covered.
In addition to the CDA, social media policies are an effective tool to set parameters on what company employees may and may not post to company related Internet media. Such policies may promote harmony among employees and protect company sponsors of social media against other types of claims, and they do not generally diminish the protections established by the CDA. While enjoying the protections afforded by the CDA, however, corporate providers and users of social media should remember that the CDA does not cover every type of publication – situations like copyright and trademark infringement and criminal offenses are beyond the scope of the CDA and are covered by other federal and state laws.
In the Lawyer Monthly article, “When Social Media Becomes Anti-Social: Application of the Communications Decency Act in the Wild”, Partner David Fink and Associate Andreas Becker discuss in greater detail how the Federal Communications Decency Act (CDA) and social media policies protect Internet users and providers from liability.