Website Proprietorship Liability, Design and Two Regrettable Online Norms:

Nancy Kim, California Western School of Law

Abstract

Two regrettable norms have emerged online: the posting of content about others without their consent; and impulsive postings with little or no regard to their long term consequences. Website operators can either encourage or discourage these regrettable norms and influence their consequences through the design of their website and by the fostering of norms and codes of conduct. Unfortunately, section 230 of the Communications Decency Act as interpreted by courts provides websites with broad immunity. In a prior Article, I argued that a proprietorship standard should be imposed upon websites which would require them to take reasonable measures to prevent foreseeable harm. This Article further champions the concept of website proprietorship liability and proposes that section 230 should be amended to recognize such liability with provisions for the following "safe harbors" for website operators that: (1) permit only postings by identified posters; (2) have non-profit status and do not accept ad revenue; and (3) remove postings upon request of the victim. This Article also addresses anticipated objections which are based upon market concerns and free speech concerns.