Listserv and Bulletin Boards: Legal and Practical Considerations
By: Barbara F. Dunn, Esq. & Nathan J. Breen, Esq., Howe & Hutton, Ltd.
Electronic listservs and bulletin boards are becoming increasingly valuable resources for individuals to share knowledge and ideas on specialized topics. They provide topical, interactive forums across a wide range of subject matter, and therefore they can be a very valuable member benefit for an association. However, the use of listservs or bulletin boards also raises the issue as to who is responsible for the content posted on the listserv or bulletin board. Anyone who participates in or works with listservs or bulletin boards ought to be aware of the issues raised and the allocation of liability for claims arising from their use.
The evolution of the law as it applies to listservs and bulletin boards provides an interesting glimpse as to how traditional legal concepts have been adapted to best fit the online world. A few early court decisions held that the provider of an online forum such as a bulletin board or listserv could be held liable as a publisher of the material that appears within the forum where the host exercised editorial control over its content. The result was a disincentive for listserv and bulletin board providers to engage in any efforts to monitor or control the forums’ content for fear of being held liable for any unlawful content that they contained. The law as reflected in these cases placed bulletin board and listserv hosts in the awkward position of facing liability for attempting to screen out objectionable content while insulating them from liability if they simply maintained an unmonitored forum. Realizing that forum hosts faced liability for undertaking good faith efforts to keep objectionable content out of the forum, Congress stepped in to provide a sort of safe harbor for monitoring efforts under the Communications Decency Act of 1996 (47 U.S.C. § 230 et seq.) (“CDA”).
The CDA states that no provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information provider. A couple of recent court decisions confirm that the CDA applies to any web site operators that provide others with the ability to post content on their site. The CDA grants immunity to such providers for civil liability that was previously associated with monitoring of the forum and the removal of objectionable content. The Act does not apply, however, to allegations involving the violation of a criminal statute or the infringement of intellectual property. In instances where the host of a listserv or bulletin board is aware of allegations involving criminal activity or intellectual property infringement taking place within the forum, prompt action should be taken since a failure to take action to remove the objectionable material from the forum may result in contributory liability for these acts.
Since the CDA has removed any disincentive to monitor the contents of a listserv or a bulletin board, associations and other hosts may wish to consider some level of monitoring for these forums. Listservs and bulletin boards can often veer off track toward irrelevant and objectionable material when left to the mercy of their participants. An effective monitoring practice can help maintain the value of these forums while preserving the host’s good reputation in the process.
To implement an effective approach toward monitoring a listserv or bulletin board, an association should first formulate a policy statement concerning the purpose of the bulletin board or listserv. Such policy statement should be communicated to the association’s members and staff. Staff should ensure that they are very familiar with the policy and the legal issues which may be of concern to the association. Also, associations that operate online forums may wish to revise their bylaws such that the association may take action under the bylaws to terminate someone’s membership for improper conduct on the association’s bulletin board or listserv. Finally, an association should develop a comprehensive user agreement which all bulletin board or listserv participants agree to prior to accessing or being permitted continued access to the forum.
· specify the terms of eligibility for use of the forum;
· specify the focus of the forum and identify what types of content are unacceptable;
· inform the user as to the association’s monitoring practice;
· require the user to agree not to use the forum for improper or illegal purposes;
· require the user to indemnify, defend, and hold the host harmless for any claims brought as a result of his or her use of the forum; and
· specify any disciplinary measures that may be taken as a result of any improper use of the forum (e.g., loss of access to the forum or loss of membership in association).
The association should then ensure that it acts in accordance with the terms of the applicable agreement. Any decision to monitor obviously involves the evaluation of a variety of practical and operational considerations on the part of the host. The scope of any monitoring efforts in which the association is willing to engage often depends on the volume of forum traffic. Whatever the monitoring approach, the association should ensure that the monitoring process is consistently applied and that any disciplinary measures for misuse of the forum are consistently and uniformly enforced. By undertaking monitoring in this manner, associations help to preserve their listserv or bulletin board’s integrity and value to their members.
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