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Bloggers & Moderators liable for blog comments

Update 2009:  This article notes that a blogger has been fined 1.8 million dollars for an article that he allowed to be published on his blog.

"The head of a local advertising agency has won $1.8 million in damages after suing an author of a blog - known for its harsh and sometimes crass criticism of elected officials, business leaders and local media - for defamation."

Today a blogger must be aware of libel and defamation laws in 190 countries from Afghanistan to Zimbabwe.  In this Reuters article we see that Sun Microsystems has warned their employee bloggers that embarrassing any Sun customer in a blog is very dangerous:

Sun's bloggers also are cautioned to protect corporate secrets and that "using your Web log to trash or embarrass the company, our customers, or your co-workers, is not only dangerous but stupid."

According to the web page titled “NOTICE - YOU HAVE BEEN SUED” the blog owner claims that he was sued for comments like these, which he did not write (below is edited to remove the name of defamed party):

Some of the opinions are fairly harsh, with some people stating things like:

In my opinion, all xxx is is just a bunch of cheep everyday crooks. They should all be in jail.

xxx called me today at 4:34am in the morning!!! What the F*@k ! They do not even check the time zones of who they are calling? I line in Hawaii .. Can anything be done to stop these people?!?!

This blogger also lists the text of the blogger libel lawsuit, which alleges that the Defendant is responsible for the words of others, in this case because of his alleged malicious intent:

15. Also at unknown date or dates, Defendants maliciously published or caused to be published false and defamatory information over the internet concerning Plaintiff and Plaintiff's business.

16. Pursuant to Defendant's malicious intent, the publication has been read by the public.

17. The false and defamatory matter is calculated to damage Plaintiff's reputation, and at the time Defendants published or caused to be published such false and defamatory information about the Plaintiff over the internet, Defendants knew that the information published was false and defamatory and making such defamatory publication, Defendants acted with malice toward the Plaintiff.

It's a wide world for the blogger

 

Blog and forum publishers have been successfully hailed into foreign legal battles, and the current consensus is that the blogger must know the scope of their liability across the planet. 

 

The DMCA was designed to protect web hosting services and ISP's and not web authors.  In this article, a retired judge Fadeley notes that offering DMCA protection to bloggers and web authors is a serious loophole in the DMCA, and that new legislation is required to make bloggers and "cyber bullies" responsible for damage to people.  See Time for DMCA reform for details.

 

The “Read My Day” blog site in England has published an excellent warning that suggests that British bloggers are responsible for all comments published into their blogs:

 

Posting comments on the internet is akin to writing the same comments to the letters page of every major national newspaper in the world.  The international scope of blogs mean that claims in any country are possible - territorial limits are a thing of the past.

 

Bloggers must also be aware of their responsibilities as hosts of discussions where comments are invited from readers.  Any defamatory comments made in other posts on the blogger's website may result in the blogger being held responsible for those comments and being sued for libel. 

 

Defamation legislation gives a defence where the 'publisher' (the blogging host) has no knowledge of the defamatory remarks or no reason to suspect the remarks have been made.  This gives some protection to Internet Service Providers (ISPs) but very little comfort where the blogger has read and accepted comments on his/her blogging pages.  A prudent blogger must exercise editorial control over comments to avoid this liability as a publisher of libel. 

 

Australia has similar laws to England, and this Australian libel web site notes that linking-to or otherwise republishing a libel, is itself a libel:

In principle republication of a defamatory statement is itself a libel.

It is no defence to say that what is published is merely a repetition of a statement that was previously published and that did not incur prosecution. In principle every person who repeats or republishes a defamatory statement faces the same liability. . .

Australian law is an adversarial system, in which a defamatory statement is assumed to be false and must therefore be defended. Truth was allowed as a defence in defamation for first time in the UK under the 1835 Libel Act but - in practice - using that defence can be difficult.

To be completely safe, some folks recommend that you turn-off blog comments to ensure that you don't inadvertently publishing a libel on your blog:

 

However, some jurisdictions agree that the blog owner could be held responsible if they “incited” the defamatory remarks or if they selectively edit or delete the comments. 

 

In the USA, you can be sued for “tortuous interference” if your blog comments defame, encourage harassment or interfere with someone’s normal course of business.

 

The North Carolina Supreme Court has held that tortious interference with prospective economic advantage occurs when a party interferes with the freedom of contract and “not in the legitimate exercise of defendant's own right, but with design to injure the plaintiff . . ." (see Owens v. Pepsi Cola Bottling Co. of Hickory, N.C., Inc., 330 N.C. 666, 680, 412 S.E.2d 636, 644 (1992)).

 

This article also notes that in Germany, a forum moderator is responsible for comments that are made in their forum:

A Hamburg court has ruled that moderators of internet forums are liable for content posted on their sites. . .  The new ruling means if operators do not have enough in-house resources to monitor forums, they should "reduce the scope of their business operations".

This court ruling also imposes the burden on forum moderators to approve messages before publishing them, just like any other traditional print publisher:

The court held that a publisher would have been able to prevent such incitations by "reviewing the content of the comments before publishing them."

 

The court clearly did not believe Heise Zeitschriften Verlag's argument that constant reviewing of the content of more than 200,000 comments per month would be an unreasonable burden on the publisher.

This article by Alfred C. Frawley notes that allowing employees to blog during work hours can expose the company to liability for a host of civil torts:

 

“Established case law suggests an employer can be liable for even unauthorized publication of allegations by an employee when that publication occurred in performance of an employee's authorized acts”

 

Frawley also note that company policies must be very strict regarding blogging, and those companies that allow employees to blog do so at their own peril:

 

“The fact that the employee chose an improper method of performing his job does not shield the employer from liability and certainly this logic can be applied to blogs where the employer has encouraged legitimate discussion of reliable businesses.”

 

Finally, Frawley notes that blogs intensify the risk of liability for any company:

 

“Blogs also may intensify the risk of liability for defamation, copyright and trademark infringement, disclosure of trade secrets or private customer information or other business torts. Even comments posted to a blog by unrelated third parties may rise to claims of corporate liability.”


 


 

 
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