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Article
Website Design and Liability
Faculty Scholarship
  • Nancy Kim, California Western School of Law
Document Type
Article
Publication Date
1-1-2012
Disciplines
Abstract
Two regrettable behaviors have emerged online: the posting of content about others without their consent; and impulsive postings with no consideration of long-term consequences. Website operators can either encourage or discourage these regrettable behaviors and influence their consequences through the design of their website and by the fostering of norms and codes of conduct. Unfortunately, courts interpret section 230 of the Communications Decency Act as providing websites with broad immunity. In an earlier 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 nonprofit status and do not accept ad revenue; and (3) remove postings upon request of the victim. This article also addresses anticipated objections that are based upon market concerns and free speech concerns.
Citation Information
Nancy S. Kim, Website Design and Liability, 52 JURIMETRICS 383 (2012).