Archive for the ‘website’ Category

Catherine R. Gellis, “2012 State of the Law Regarding Internet Intermediary Liability for User-Generated Content”

February 4, 2013

 Catherine R. Gellis (Digital Age Defense) has published “2012 State of the Law Regarding Internet Intermediary Liability for User-Generated Content“, Business Lawyer, Vol. 68, No. 1, 2012 which contains a summary of key cases regarding 47 U.S.C. Section 230 and 17 U.S.C. Section 512.

Nancy S. Kim, “Website Design and Liability”

September 28, 2012

 Nancy S. Kim (California Western School of Law) has published “Website Design and Liability”, Jurimetrics, Vol. 52, No. 383-431, 2012. The abstract states:

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.








Matthew Nied, “Unmasking Anonymous Defendants in Internet Defamation Cases”

March 14, 2011

Matthew Nied has published, “Unmasking Anonymous Defendants in Internet Defamation Cases: Recent Developments and Unresolved Issues”, Canadian Privacy Law Review, Vol. 8, No. 3, p. 31, 2011. Here’s the abstract:

While the internet provides users with an environment in which socially valuable speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these users are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these third parties generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of applications for such orders, courts have sought to consistently assess them in a way that strikes an appropriate balance between the freedom of expression and privacy interests of anonymous defendants and the reputational interests of plaintiffs.

Currently, there are two ways for plaintiffs to compel third parties to disclose the identity of anonymous defendants: by seeking an equitable remedy of discovery known as a “Norwich order”, or by seeking pre-action discovery or production under the applicable rules of civil procedure. Although courts have developed these approaches to strike a more appropriate balance between the competing interests, two unresolved issues remain to threaten that balance. First, while the approaches are similar, they differ with respect to the protection that they afford to the privacy and freedom of expression interests of anonymous defendants. Second, neither approach requires that anonymous defendants be informed of applications for the disclosure of their identities in order to enable them to represent their interests. This article surveys the two approaches, discusses the unresolved issues, and considers how courts may address them.

The article is available for download at SSRN here.

My Apologies to the Canadian Legal Blogging Community: A Reply

November 28, 2010

A Reply to Natalie Waddell, CEO of

Dear Ms. Waddell,

I take this opportunity to reply to your post entitled: My Apologies to the Canadian Legal Blogging Community.

I acknowledge your immediate “public relations damage control” response to the objections raised by some, including myself, on Twitter regarding your “dailyblawg” RSS aggregator site, which you subsequently have taken down, pending further consideration.

Please note that I do not speak for the “Canadian Legal Blogging Community.” As far as I know, there is no  organized community of “blawgers”, which many of us prefer to be called.  I do, however, speak for myself as a member of the Blawgosphere, which is made up of a number of communities, but is ,otherwise, amorphous and Matrix-like in its various manifestations.

According to your company’s website bio, you are not a lawyer. Please then allow me to take the liberty of explaining to you some fundamental legal concepts that you should consider going forward with your business marketing plan strategy as it relates to the Blawgosphere. Of course, this in no way constitutes legal advice. You ought to retain a lawyer. Perhaps, as described by your business colleague, Mark C. Robins, on Twitter, you may find a lawyer willing to assist you on your “national legal referral service and directory”.

In your apologia, you write,

“I created this aggregator as a way to facilitate this mission, and as a way to give back to the legal industry. You all write such fantastic, leading edge, and topical legal information, and I truly felt I was providing an additional venue for your information to be heard and easily shared amongst yourselves and with the public.”

I have no reason to doubt your intentions as anything less than altruistic. Your mission statement says so. It is a material representation that I intend to rely upon. Hence, I will extend to you the benefit of my doubt that you wish your company to become the information hub for Canadian lawyers and the public.

The problem, from my vantage point, is that the devil is in the details. (more…)

James R. Pielemeier [SSRN] on "Why General Personal Jurisdiction Over ‘Virtual Stores’ is a Bad Idea"

September 29, 2009
James R. Pielemeier (Hamline University School of Law) has posted a new article on SSRN:“Why General Personal Jurisdiction Over ‘Virtual Stores’ is a Bad Idea” , Quinnipiac Law Review, Vol. 27, No. 625, 2009. Here is the abstract:

Courts in the United States today address the constitutional permissibility of personal jurisdiction by discussing two sub-types, “specific jurisdiction” and “general jurisdiction.” “Specific jurisdiction” may exist “in a suit arising out of or related to the defendant’s contacts with the forum.” “General jurisdiction” may exist “in a suit not arising out of or related to the defendant’s contacts with the forum.”

Over the past few years, courts have begun to address whether maintenance of a business oriented web site that is accessible to and used by residents of a state can be a sufficient anchor for the constitutional assertion of general jurisdiction in that state. At the level of the United States Courts of Appeal, a split of authority is developing. The D.C. Circuit in Gorman v. Ameritrade Holding Corp and the Ninth Circuit in Corp. v. L.L. Bean, Inc., have held that the answer is yes, with labeling L.L. Bean’s web site a “virtual store.” The Fourth, Fifth, Sixth, Tenth, and Federal Circuits, all after relatively short discussions, have held that the answer is no, at least on the facts before them.

This article argues that the Gorman and were improvident and wrongly decided, that general jurisdiction over virtual stores is inconsistent with any principled development of the law of general jurisdiction.

The article will conclude with a call for the courts of appeals to abandon the concept of general jurisdiction over virtual stores or for the Supreme Court to take up the issue and provide some much-needed guidance on the constitutional limitations of general jurisdiction.

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