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Defamation liability for threads on blogs and news websites

By Steven | August 31, 2008

Remember the basic rule of defamation: you publish it, you’re liable for it.

That includes everyone involved in the publication. In a newspaper: the quoted source, the reporter, the subeditor, the editor, the publisher, the printer, the paperboy, and the bookshop. (The last three probably have a defence of innocent dissemination, as long as they’ve got no reason to think there’s anything defamatory in the paper).

Similarly, broadcasters are liable for the statements of their contributors – even callers on live talkback radio. That’s why they employ delays and dump buttons.

And so online. If you’ve got comments on your website, then you’re liable for them if they turn out to be defamatory. That’s certainly the case if the comments are moderated, and particularly if they’re pre-approved. But based on first principles, it’s also probably the case where the site simply invites comments and allows them to be posted.

If you’re managing a website and want to give yourself the best chance of avoiding liability for others’ comments, then don’t have anything to do with the comments, and put up a dirty great sign telling everyone that you’re not checking the content of the comments. Then stick to this. Don’t even reply to any of them, lest you give the impression that you’re reading them and therefore implicitly approving them. Then, if someone does complain about a particular comment, check it out or take it down. The possibility that you have avoided liability runs out at the point that someone draws it to your attention.

Now, I doubt even these precautions will work for you. You’re still publishing it, and you’ve invited the comments. You’re probably still liable for them. But they give you the best chance. They try to set you up as an “innocent disseminator” – like the bookshop – rather than the main publisher. They try to put you in the same position as the ISP. On current authority, ISPs are probably “innocent disseminators” – again, until they’re given notice that some content may be defamatory. At that point, they become potentially liable for it unless they remove it.

Out-law.com reflects the debate:

“Many lawyers I’ve spoken to now view the invitation of content – so if you have a comments section at the end of an article on a newspaper site – they view that as inviting comment and therefore you are responsible for it and therefore you probably want to consider pre-moderating all the content that goes there,” said Danny Dagan, a moderation consultant who has helped establish online communities for The Sun newspaper, amongst others.

On the other hand: 

John Mackenzie, a litigation partner with Pinsent Masons, the law firm behind OUT-LAW.COM, disagrees with Dagen and Sparkes.

“It is likely that the courts will focus on whether or not a publisher reviewed content, rather than the form of the publication,” he said. “It isn’t likely to make any difference whether or not it is an invitation to comment or a bulletin board. They amount to much the same thing. If the comments are not moderated, the publisher is probably safe, at least until notified of any allegedly defamatory posting.”

Topics: Defamation, Internet issues | 5 Comments »

5 Responses to “Defamation liability for threads on blogs and news websites”

  1. Captiver Says:
    August 31st, 2008 at 5:51 pm

    Does that mean that you don’t read any of the insightful comments we, your faithless readers, post on your blog?
    Oh, no, wait. I guess you can’t comment on that. Dang.

  2. Steven Says:
    September 1st, 2008 at 10:51 am

    I’m taking my own advice (which probably means I have a fool for a client) and assuming that I”m liable for comments. My blog policy implies as much – as does the fact that I frequently reply to comments. So I’m stuffed.

  3. Paul Matthews Says:
    September 3rd, 2008 at 3:49 pm

    I’ve noticed some blogs have comments that are demonstrably monstrous. Could someone lay a complaint with the Race Relations Office resulting from a blog comment? Does it make a difference if the comments are moderated? What are the likely repercussions if this is seen as an offence?

  4. Steven Says:
    September 3rd, 2008 at 3:56 pm

    I haven’t looked at this closely, but the offence in the Human Rights Act relates to publishing. I’m guessing that similar principles will apply: if you pre-approve or moderate, then you’ll be taken to have published someone else’s comment. Otherwise, you might be able to avoid being held responsible for it up until the point that someone gives you notice of the problem. If you have such notice, and don’t remove it from your site, it will be hard to argue that you haven’t published it then.

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