Of course, every business must address certain legal risks associated with operating online, and I can tell you as an Internet business lawyer that forums are no different. Let’s take a look at the legal issues you need to be aware of when running one of these sites – and let’s do it in plain English.
Defamation – When Members Don’t Get Along
Defamation is perhaps the most common legal issue you will face when running a forum. Defamation is the act of making a false factual statement that damages the reputation of another person. When the statement is voiced, defamation is known as “slander.” When the statement is reduced to writing, it is given the title “libel.” The vast majority of defamation scenarios on forums involve libel.
Defamation is a problem on forums because tempers can quickly rise when members express their opinions. These disputes often intensify because members believe they have anonymity when posting. Let’s look at a classic type of forum where defamation spreads like a zombie virus – political forums.
Bob is a member of the Fix Washington Now forum. He starts a thread extolling the virtues of Jeb Bush for President. Mark responds with a snarky comment and suggests Hilary Clinton is the better choice. Bob and Mark start going back and forth in ever more heated exchanges. Then Mark posts a comment calling Bob a racist. Bob claims he is not a racist and files a lawsuit against Mark and the forum for defamation.
What liability does the forum have for Mark’s statements? The good news is – none. Section 230 of the Communications Decency Act provides “Internet service providers” with immunity from defamation claims based on statements made by members of a forum. The term “Internet service providers” includes forums. Even better, you don’t have to take any steps to obtain this protection – it applies automatically.
While political forums are breeding grounds for defamation lawsuits, even forums on seemingly non-controversial topics such as bird watching and gardening can give rise to legal disputes. [How dare you insult my Canterbury Bells!] Regardless of the subject matter of your community, Section 230 of the Communications Decency Act will protect you.
“We Will Never Sell, Rent or Share Your Information”
You know the old cliché that no good deed goes unpunished? It applies here. How could including a promise not to sell, rent or share the personal information of your members to third parties possibly hurt you as a forum owner? Simple. This contractual obligation makes it nearly impossible to sell your forum to another party in the future.
Members make a forum valuable. Members provide fresh content. Members answer other members’ questions. Members even buy your products and services. A forum with no members is much like the Trump Casino in Atlantic City – empty and unattractive to buyers.
“We respect your privacy. We will never sell, rent or disclose your email address to another party.”
In 2013, the parent company of True.com went bankrupt. Knowing a potential deal when it saw it, the dating site Plenty of Fish offered $700,000 to purchase the membership database of True.com. A number of states objected to the sale because True.com had promised members it would not sell their privacy information pursuant to the statement above.
The court ruled True.com had to live up to its promise.
No sale. No $700,000.
13 or Older – Check That Box
At one point or another, you’ve probably joined a forum or site that asked you to confirm you are 13 or older when registering. Ever wondered why this is required? The answer is a law known as the Children’s Online Privacy Protection Act or “COPPA.”
COPPA is a very complex law. The important thing to understand is forums must provide the parents of a child under 13 with notice if the child tries to join the forum. The site must then obtain verified consent from the parents allowing the forum to collect the same type of personal information from the child [name, email address, etc.] as it would from any other member.
The bureaucratic red tape and procedures required to comply with COPPA are so daunting and expensive; the regulations could make even the most hardened DMV employee weep with joy. Even with all its programming and financial resources, Facebook strains to avoid COPPA compliance by prohibiting children under 13 from opening Facebook accounts. This should tell you something.
A discussion of COPPA compliance is impossible here for two reasons. First, the explanation would require a 5,000-word article. Second, you would be begging to “just make it stop” by the 200-word mark. As a forum owner, you just need to know the following. If you are launching a forum devoted to children or teens, talk with a COPPA lawyer. The FTC can claim damages of up to $16,000 per child on a forum if you fail to comply with the law. Taking a moment to have a lawyer check whether your forum must be COPPA compliant is well worth the money spent.
DMCA Immunity – When Members Commit Copyright Infringement
Members are going to post text, pictures, videos, music and graphics to your forum. The majority of this material will consist of the copyrighted works of another party. When a member posts the content on your forum, they are often committing copyright infringement. Traditionally, forums were jointly liable for these infringing posts, but no longer.
The Digital Millennium Copyright Act [“DMCA”] was enacted in 1998 to provide user-generated content websites, including forums, with “safe harbor” protection from copyright lawsuits based on content uploaded by members. Put in plain terms, you cannot be sued by a tabloid photographer if one of your members uploads a picture of a celebrity taken by the photographer.
DMCA protection comes with a catch. You must take certain compliance steps to maintain the protection. These steps include:
- Select and register a DMCA agent with the United States Copyright Office,
- Publish a DMCA policy on the forum detailing how copyright owners can file complaints with you,
- Follow the compliance steps for handling a complaint as detailed in the DMCA, and
- Create and enforce a repeat infringer policy.
After defamation, copyright infringement is the most frequent legal topic you will face as a forum owner. The DMCA is designed to provide you with protection from such claims. Take full advantage of it.
Paid Membership Area – Monetizing Your Forum
A common monetization strategy for forums is to create a private member area available to those willing to pay a monthly fee. If you institute a paid membership option with your forum, keep in mind you must comply with “automatic renewal billing” laws. These laws require forums to provide consumers with a clear explanation of billing practices including how to cancel a paid membership.
Compliance typically involves a two-step process – notice and acknowledgment. The forum owner must provide a clear statement of the recurring billing policy as part of the registration process. Once registration is successful, a confirming email must be sent detailing the fact the new member will be charged on a recurring basis as well as explaining the steps required to cancel the membership.
The notice and acknowledgment procedure is a bit more complicated than described here. The important thing to remember now is there are disclosure requirements if you employ a paid membership option on your forum.
Advertising – Let’s Make Some Money
Advertising is a time-tested approach to monetizing a forum. Gain enough members and companies will contact you about placing ads on the website. You should always require an advertiser to sign a contract before allowing advertising. The agreement should cover topics such as:
- The specific advertising being purchased,
- The location of the advertising on the forum,
- Your right to pre-approve any advertising copy,
- How long the advertising will be up on the site,
- The type of subjects allowed and not allowed in the advertising,
- Cancellation policies,
- Refund policies if cancellation occurs,
- Limitation of liability clauses,
- An agreement by the advertiser to indemnify the forum if the advertising results in legal issues, and
- A disclaimer noting the forum is not guaranteed to be up and functioning 24/7.
You can publish the agreement as a stand-alone document or a set of terms and conditions on the site specifically tailored to advertisers.
Affiliate programs are another popular way to monetize a site. If you take this tact, the FTC requires that you disclose to members the fact you get a commission on each relevant sale. Instead of trying to downplay the disclosure, consider being upfront about the monetization to establish trust with your community.
Terms and Conditions – The Boring, But Important Stuff
Terms and conditions act as a contract between you and the members of the forum, setting forth the rights of each party. The document should cover topics such as:
- Membership restricted to individuals 13 or older,
- Member copyright waivers,
- Rules for member conduct on site,
- Prohibition against certain acts such as spamming the forum,
- Advertising prohibitions unless consent is first obtained from you,
- Prohibition against intellectual property infringement,
- Linking policy,
- Permission to email members with certain messages,
- Prohibition against sharing account,
- Cancellation policy,
- Warranty disclaimers,
- Limitation of liability clause,
- Clause dictating where all disputes will be resolved,
- Extensive arbitration clause designed to cut off class action lawsuits,
- Choice of law clause dictating what state law will control in disputes,
- Procedure for updates to the terms in the future, and
- Other clauses specific to the nature of the particular forum.
I get it. Obtaining terms for your forum is likely low on your “to do” list. You need to rethink this view. Properly prepared terms are often the key to avoiding or winning lawsuits. Make sure yours are in order. Much like changing the oil in your car, you can pay me now for quality terms that keep you from being sued or a lot more money later to defend you in a lawsuit.
Rules of Conduct – Children, Children
While your terms should always contain a section detailing the rules of conduct members must follow, one has to face up to the fact few people actually read the terms and conditions for websites. Given this, you should create a “Start Here” section of the forum and list the rules as the first post. Designate this post as “sticky”, so it always remains at the top of the forum.
The subject matter of your forum will determine the specific rules of conduct for members. Rules common to just about ever forum, however, include prohibitions against:
- Harassing or bullying members or moderators,
- Making threats against others,
- Stalking members or moderators,
- Spamming the forum or specific members,
- Promoting illegal activities,
- Promoting obscene materials,
- Posting child porn,
- Promoting violent conduct,
- Selling anything without forum permission,
- Uploading viruses,
- Uploading malware,
- Sharing an account with others,
- Attempting to hack the backend of the forum,
- Promoting gambling,
- Soliciting members for sex,
- Posting adult content,
- Promoting contests without forum consent, and
- Promoting pyramid schemes.
By setting forth these rules, you short circuit the vast majority of problems most forums face. While 99 percent of your members may be great people, there are always a couple of trolls who will cause a ruckus. The rules of conduct give you legal grounds for canceling their memberships and blocking their IP addresses so they cannot sign up again under an alias.
Disclaimer – We Promise NOTHING!
A disclaimer is a smart addition to a forum, particularly if the forum addresses topics related to making money or health issues. The purpose of the disclaimer is to establish the information provided on the site is for educational purposes, and is not intended as advice for a member’s particular situation. The goal is to reinforce the notion a person with pain in their abdomen, for example, should speak with a physician, not take advice from “MadDog188” on how to get relief. Disclaimers – learn to love them!
Incorporation and Insurance – Required?
While you are not required to form a business entity or obtain liability insurance for your forum, doing so certainly makes sense. A business entity provides a shield between the liabilities of the forum and your personal assets. An insurance policy pays for any judgments rendered against the forum in a court of law as well as the fees an attorney will charge to defend the lawsuit. All of these benefits are incredibly valuable.
What if you can’t afford both a business entity and insurance? Most attorneys suggest forming the business entity first. I disagree. If your forum is named as a defendant in a lawsuit, you will need to pay an attorney to defend the legal action. A business entity provides no financial resources to pay legal counsel unless you’ve been saving money to the tune of six figures or more. A liability insurance policy, on the other hand, will pay for both the attorney’s fees and any resulting judgment within policy limits, which makes obtaining liability insurance a must in my opinion.
Don’t Be Deterred – Go Ahead
Don’t let this list of issues scare you off from starting a forum. Many of these topics are dealt with once at the launch of the forum, and then not touched again until a change in the law requires an update. The few areas that require constant attention, such as handling DMCA complaints, will become second nature to you quickly.
Should you launch a forum? Absolutely. Forums represent perhaps the most successful platform in the history of the Internet. Forums were popular and profitable in 1999 and 2009. There is no reason to believe the same will not be true in 2019 and 2029.
Questions or concerns about legal issues surrounding your forum? Contact me for a no-obligation chat.
Richard A. Chapo, Esq.
- Section 230 of the Communications Decency Act – Federal law providing Internet Service Providers with immunity from defamation claims for statements made by users.
- Children’s Online Privacy Protection Act – The COPPA Rule issued by FTC setting for the rules and regulations for the collection of information from children under 13 online.
- DMCA Code – United States Copyright Office copy of the federal code establishing the Digital Millennium Copyright Act.