Considering this issue comes up every time Russ and I speak in front of an audience (including yesterday), I thought it would be interesting to share that the courts have been consistently ruling that blog owners are not legally responsible for the comments on their site, even if they moderate…
It happens all too often that some website owner in the US is sued with claims of libel over comments on that site in an open forum. We usually point to Section 230 of the Communications Decency Act, and note that it’s pretty clear that service providers of such forums are not liable for content they didn’t write themselves. We also like to point to a 9th Circuit ruling, noting that, even when such comments are moderated or approved, the site owner or moderator isn’t responsible. While the Supreme Court later refused to hear an appeal on the case, meaning the ruling really still only covers the 9th Circuit, the ruling is so reasonable, you’d have to hope other courts would agree with the logic. It appears some already are. Tech Law Advisor points us to a few different sources covering a District Court ruling (outside of the 9th Circuit) that comes to similar conclusions (even if the article is improperly headlined). The case involves the somewhat infamous TuckerMax forums, which are known for being a bit on the… free wheeling side of things. Apparently, a bunch of anonymous commenters there were upset about a party thrown by some publicist, and posted some relatively mean comments about him in the forums. The publicist then sued Tucker Max, claiming that he was liable for the comments, even though it was clear they weren’t made by him. The actual court ruling (warning: pdf) is an enjoyable read, as the judge clearly explains why he’s throwing out the case. He even cites the ridiculous number of censors China employs to filter the internet to explain why it’s not reasonable to expect internet site owners to police their forums more carefully — even as he notes that Tucker Max clearly admits to moderating comments on his site. The ruling also refers back to an older ruling pointing out the importance of protecting free speech, even when vulgar. It’s another reasonable ruling concerning these issues. Hopefully, once enough of these pile up, most lawyers will know better than to file such lawsuits.
Dustin
As with all things legal, there are usually few things that are black and white. And so it goes with this issue. I generally agree with the essence of your post but will later post a more in-depth analysis of the 9th Circuit case that was referenced (Batzel v. Smith) and what it means and doesn’t mean. Gotta go to lunch first….
-Russ
I was hoping you might jump in here, and give us the low-down. I look forward to reading what you come up with!
Thanks for the info. I had two people who got $300 conned out of them, slandering the local Coyote Ugly and an “investor” in their company. Turns out Coyote Ugly’s never heard of the guy.
Back from lunch…had a Salmon Burger. Yum!
Anyway, I agree with you Dustin that blog operators are generally not going to be liable for defamatory content posted by visitors to the blog. The basis of this immunization is the Communications Decency Act of 1996 which was enacted primarily to control the exposure of indecent material to minors.
Some of the provisions in the CDA were enacted in response to the decision in Stratton Oakmont, Inc. v. Prodigy Services Co. In this case, Prodigy was held liable for publishing defamatory statements on one of its online bulletin boards. The court determined that Prodigy should be responsible for the statements on its bulletin board because it monitored the information posted and occasionally removed offensive material.
Congress was concerned that this standard of liability would deter web site operators from removing objectionable material posted by others that may be accessed by minors because the act of removing the material would subject the service provider to “publisher” liability. Congress reasoned that making someone liable for trying to clean up the Internet was a bad road to go down.
At a high level, you should know that the CDA protects providers and users of “interactive computer services” from defamation liability arising out of information “provided by another information content provider.” Do typical blogs qualify as an “interactive computer service”? Yes. The key limitation here, though, is that the protection applies only to information provided by another.
Let’s say that I make a defamatory post about someone else on RCG. Regardless of whether Dustin chooses to leave my post up or to remove it, he would have no liability for my defamatory statements even though he operates this blog. He did not create the content and will not be deemed to have “published” it.
Now, let’s say that Dustin partially edits some of my comments to make them more appropriate in his mind but leaving intact the substance of what I was trying to say. Courts have held that this type of “editorial” control is generally not enough to make Dustin the publisher of my comments. Again, no liability.
Now, let’s say that Dustin copied my post and then added his substantive comments to it thereby creating “new” material. In that case, it is possible that Dustin has crossed the line from being the “provider” of the blog to being the “publisher” of defamatory words. As a result, Dustin would be liable as if he initially typed the words himself.
I suggest that bloggers adopt a stated policy on moderation. Some bloggers may adopt a “moderate every post” policy while others may adopt a “never moderate” policy and others somewhere in the middle. There is no “right” policy. Whatever that policy is, stick to it and apply it consistently across the board.
Blogging is fun and can be a tremendous marketing medium. It is not without peril if used without common sense.
-Russ
Back from lunch…had a Salmon Burger. Yum!
Anyway, I agree with you Dustin that blog operators are generally not going to be liable for defamatory content posted by visitors to the blog. The basis of this immunization is the Communications Decency Act of 1996 which was enacted primarily to control the exposure of indecent material to minors.
Some of the provisions in the CDA were enacted in response to the decision in Stratton Oakmont, Inc. v. Prodigy Services Co. In this case, Prodigy was held liable for publishing defamatory statements on one of its online bulletin boards. The court determined that Prodigy should be responsible for the statements on its bulletin board because it monitored the information posted and occasionally removed offensive material.
Congress was concerned that this standard of liability would deter web site operators from removing objectionable material posted by others that may be accessed by minors because the act of removing the material would subject the service provider to “publisher” liability. Congress reasoned that making someone liable for trying to clean up the Internet was a bad road to go down.
At a high level, you should know that the CDA protects providers and users of “interactive computer services” from defamation liability arising out of information “provided by another information content provider.” Do typical blogs qualify as an “interactive computer service”? Yes. The key limitation here, though, is that the protection applies only to information provided by another.
Let’s say that I make a defamatory post about someone else on RCG. Regardless of whether Dustin chooses to leave my post up or to remove it, he would have no liability for my defamatory statements even though he operates this blog. He did not create the content and will not be deemed to have “published” it.
Now, let’s say that Dustin partially edits some of my comments to make them more appropriate in his mind but leaving intact the substance of what I was trying to say. Courts have held that this type of “editorial” control is generally not enough to make Dustin the publisher of my comments. Again, no liability.
Now, let’s say that Dustin copied my post and then added his substantive comments to it thereby creating “new” material. In that case, it is possible that Dustin has crossed the line from being the “provider” of the blog to being the “publisher” of defamatory words. As a result, Dustin would be liable as if he initially typed the words himself.
I suggest that bloggers adopt a stated policy on moderation. Some bloggers may adopt a “moderate every post” policy while others may adopt a “never moderate” policy and others somewhere in the middle. There is no “right” policy. Whatever that policy is, stick to it and apply it consistently across the board.
Blogging is fun and can be a tremendous marketing medium. It is not without peril if used without common sense.
-Russ
Thanks for this extremely helpful discussion, Russ and Dustin.