In the Agora: Internet law developments

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November 21, 2006

Internet law developments

The law surrounding blogging and the comments thereon has long been in upheaval. For some time now website operators could, in a minority of jurisdictions, be held liable for libelous remarks of third party posters under certain circumstances. Comparing blogs and websites to newspapers, some courts reasoned that if an operator filtered or moderated comments, it was implicitly approving the ones that remained. In other words, if a blogger deleted some comments, he or she could be liable for any tortious ones that he or she did not delete. The case law led to a number of bloggers adopting a strict "hands off" policy where no comments were moderated, yet it has also led to a number of bloggers, fearful of taking any chances, simply doing away with comments altogether. Poorly written laws have even led to the possibility of committing federal offenses when comments are left anonymously.

But in Barrett v. Rosenthal the California Supreme Court ruled that Internet users who post (to Web sites or discussion groups) material created by others are immune from liability. The court seemed to rest its holding on 47 U.S.C. 230, which provides 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." The California Supreme Court held that this protects not only service providers whose sites are used to post material without the provider's intervention, but also users who personally select which material (written by others) to post.

In spite of the minority position, it seemed relatively clear that when a user posts material on a site, the operator of the site can't be held liable. California seems to have cemented that view and even gone a step further in granting immunity even when the operator is notified of the potentially tortious nature of the activity. For instance, we here at ITA could not be liable for the tortious comments of others, nor, under California law, would we be liable for re-posting the tortious comments of others, so long as we are not conspiring with them or "active[ly] involve[d] in the creation of [the] posting."

Posted by Joshua Claybourn at November 21, 2006 02:05 PM

Comments

The California Supreme Court held that this protects not only service providers whose sites are used to post material without the provider's intervention, but also users who personally select which material (written by others) to post.

This seems to apply not just to comments but also to posts themselves. So if you create a post which includes libelous statements quoted from others, you're immune from lawsuits? That makes a convenient end run around libel law, especially since such quotations could be anonymous. All you have to do to get away with making libelous remarks is just to put them in quotation marks.

Posted by: wahoofive at November 21, 2006 05:42 PM | permalink

I realize this post is about the legal development only, but it is worthwhile to note the passage from Corinthians that "everything is permissable but not everything is beneficial." While this Biblical passage relates to standards of sexual conduct for Christians, I think the principles applies to blogging.

Along those lines, it would seem the Christian thing to remove comments that the operator reasonably believes to be libelous, regardless of whether or not he or she is legally required to do so or is responsible for the consequences if the comment remains.

Posted by: Joel Betow at November 21, 2006 07:44 PM | permalink