Proposed Legislation: Social Networking: Our attorneys previously co-authored an article entitled Wrongful Posting on the Internet: The Privacy You Save Could be Your Own. It discussed privacy and other legal issues related to online statements. The article discussed real-life predicaments such as the unfortunate story of a young Missouri girl who committed suicide after having allegedly been harassed on the MySpace social networking website. As the use of social networking websites has grown exponentially, so too have the sordid stories of misuse of those sites for online harassment and sexual harassment.
Since the then-current law was devoid of remedies to specifically address the damages presented by this new trend, in their article, Mr. Nissenbaum and Ms. Magedoff predicted that state legislatures would begin to enact laws to specifically address these issues. New Jersey now appears to be at the forefront of this movement since the New Jersey legislature is currently considering the Social Networking Safety Act. The law proposes imposition of civil penalties for social networking users who transmit a harassing or sexually offensive communication through a social networking website. An offender would be liable to a website operator for $1000.00 plus attorneys fees and would be liable to the recipient of the communication for the greater of (a) actual damages (including compensatory and punitive damages) or (b) $50000.00 plus attorneys’ fees. Notably, certain versions of the pending bill appear to be aimed at communications both (a) to minors under 13 years old and (b) in the event that the communications are sent from someone who is at least 3 years older than the recipient, to those who are younger than 16.
It is critical to understand how this potential law might apply to social networking website operators. Similar to the Federal Communications Decency Act’s immunity, the proposed law seeks to provide a limited immunity to the website operator. However, the it would also impose certain requirements on the website to ensure that it qualifies for that immunity. Specifically, there is a statutory reporting protocol that would need to be adhered to by the website OR they would need to clearly and conspicuously state on the website specific, statutorily-mandated language that indicates they are not complying with those requirements. Failure to adhere to one of these requirements could result in the website operator being liable for the harassing or sexually offensive speech of its users.
Accordingly, all social networking website operators need to be aware of the new requirements that would be imposed upon them if this bill passes. Inevitably, the law would require certain changes to the website text and/or its terms and conditions. Moreover, it is important that website operators understand that this law is aimed at communications that are directed at New Jersey residents. Therefore, it arguably would not make a difference whether the website itself is based in New Jersey; if New Jersey residents utilize the website, it will arguably need to comply with the edicts of the law.
We strongly recommend that all website operators keep abreast of this pending legislation and ensure that they consult with counsel if the law is enacted to be sure that they are complying in a manner that allows them to take advantage of the limited immunity being offered under the law.
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