Jay Parkhill November 8th, 2006
Someone recently asked me what liability bloggers could have for libelous statements made in the comments section of blog posts. There are a couple of really good resources on the Internet here, and I am linking to them as well as describing the state of thing as I understand it generally.
Basics of Defamation Law under Common Law
First, it is important to know that libel (the written form of defamation) requires the malicious publication of untrue facts regarding a person or entity. The standard of proof is fairly high- a plaintiff needs to show that a writer made comments knowing them to be untrue and with intent to injure.
The law also holds “publishers” liable based on their ability to review and screen out defamatory material. A newspaper is the classic example of a publisher.
Mere “distributors”, on the other hand, can only be held liable if they knew or had reason to know that material was defamatory. Distributors such as news stands or book stores generally do not exercise significant editorial control over the materials they provide, and it is fair to hold them liable only if it can be shown that they participated in some active, knowing way in the dissemination of libelous material.
Bloggers are subject to this law as much as any other writer or publisher as to comments they make themselves through blog posts.
Section 230 Preempts Common Law for Electronic Publications
Bloggers are generally insulated from liability for third-party comments by statute, however. The Communications Decency Act of 1996 contains provisions that preempt the basic law expressed above in certain cases. These provisions are generally referred to as “Section 230” for their place in the Federal Code.
In particular, Section 230 says that “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.” In the blogging context, this means that a blogger is not the publisher of content posted by third parties on a blog. Section 230 completely bars publisher liability of the blogger under defamation law.
Case law has interpreted Section 230 very broadly. A blogger could be considered either a provider of an “interactive computer service” by developing the blog space, or as a “user” of domain hosting, blog creation and internet access services provided by others. Either way, s/he is covered by Section 230.
Note as well that the comments must be left by “another information content provider”. This term has also been broadly defined and basically includes anyone other than the publisher/blogger in question. Section 230 would not apply, however, if the blogger him/herself, or a co-blogger or potentially a person in the blogger’s organization was responsible for a defamatory comment.
Distributor Liability – The Open Question
A question does exist under Section 230 whether a blogger could be held liable as a distributor of defamatory material. In other words, whether Section 230’s preemption of publisher liability also applies to liability of distributors.
If 230 applies to distributor and publisher claims, the blogger is just about completely off the hook for comments. If 230 does not apply to comments, then a plaintiff could seek to prove the elements of distributor liability described above.
Questions of fact and policy loom large here. Should it matter if the blogger screens comments before posting? Some say that screening puts the blogger on notice of the contents of comments and that distributor liability is appropriate. Others say that this policy might encourage bloggers to take a hands-off policy for comments, possibly increasing the volume of defamatory remarks, lowering the tenor of discourse and even stifling innovation in the area of screening technologies.
A case, Barrett v. Rosenthal is currently pending in the California Supreme Court on this issue. If the court decides to address the issue head on, it could become an important precedent on the distributor liability question. The court does not need to take a position, however, and may decide the case on purely factual grounds without establishing interpretive rules.
As a general matter, bloggers enjoy substantial freedom under Section 230 for liability based on third-party comments left on blog posts. Of course, no one wants to be a defendant in any kind of action, even if the outcome is clear. An modicum of care goes a long way toward avoiding defamatory information on any blog. As always, consult a lawyer if you have concerns about how the law might apply to your blog.
The Electronic Frontier Foundation has a Legal Guide for bloggers that is pretty comprehensive.
Eric Goldman is a Santa Clara University (Calif) law professor who follows developments in this area on his blog. See e.g. his blog law recap as well as periodic news updates.
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