Are Bloggers Liable for Comment Libel?

Imagine, you arrive at work, check your blog and discover a new comment. It reads, “Brian Shoff is a dangerous criminal.” You don’t know if it’s true, but approve the comment anyway. After all, blogging is all about hearing everyone’s opinion, right?

Time passes and one day you get a letter from an attorney. It details that the plaintiff, Brian Shoff, is suing you for libel. It further explains that the lawsuit stems from Brian Shoff losing consideration for a position with a prestigious employer because of the defaming comment on your blog.

Ted Byrne, Editor / Economist for Business2Business Publications, asked about this last Geek Camp. “Are bloggers liable for comment libel?”

I’m not a lawyer and this post should not be considered legal advice. However, I did so some research and discovered Section 230, a surviving piece of the Telecommunications Decency Act of 1996 that can help protect you from situations like the one above.

Here is how it works …

Section 230

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (FCC, 2007)

Two Important Definitions

To understand how Section 230 relates to bloggers, you first need to understand what an “interactive computer service” and an “information content provider” is. Below are definitions from the act itself.

Essentially an “interactive service provider” is a service that provides access to multiple computers to a server or access to the Internet. An “information content provider” is someone (or something) that produces content to be distributed on the Internet.

How Section 230 Protects Bloggers

Bloggers are interesting when viewed under Section 230. When they are creating or editing blog posts, they are considered a user of an interactive service provider (EFF, 2007). Once their post is published and open to comments, a blogger becomes an interactive service provider (EFF, 2007).

How?

By allowing 3rd parties to add their own content, the blogger becomes an Internet service provider. My guess is that this part of Section 230, “provides or enables computer access by multiple users to a computer server” makes this possible. But remember … you are still responsible for any libel you commit.

Editing 3rd Party Comments

So we know that Section 230 offers protection from libelous 3rd parties, but what happens if you edit the offending comment?

For example, you receive this comment, “Brian Shoff si a crimnal.” It obviously contains misspellings, and being the attentive blogger that you are, you fix them.

Does this small edit make you the content provider? No.

Courts have held that you can exercise, “the usual prerogative of publishers to edit the material you publish.” (EFF, 2007) However, if your edits make the comment libelous, you will be responsible.

For example, you receive the same comment above, but this time it reads, “Brian Shoff isn’t a criminal.” If you were to remove the “n’t” from “isn’t” you’d open yourself to a lawsuit.

Caution: Section 230 Not Bulletproof

As with every law, there are exceptions. Section 230 does not protect bloggers from criminal law, intellectual property law, or electronic communications privacy law (EFF, 2007). There have also been cases where Section 230 immunity was requested, but not provided, such as San Fernando Valley v. Roommates.com and Hy Cite Corp v. badbusinessbureau.com (Wikipedia, 2007). However, these cases had very specific reasons why Section 230 didn’t apply that most bloggers would not encounter.

Recommendation

I’m not a lawyer, but it seems that Section 230 offers sufficient protection from 3rd party comments. However, like Ted mentioned, consider how allowing libelous comments can reflect on you. Would your customers do business with someone who helps spread false information?

Also consider the cost of fighting a lawsuit. Even if you are protected, you remain responsible for lawyer and court costs.

What Do You Think?

Does knowing about Section 230 make you feel better about opening your blog to comments?

References