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

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