Moderating Comments

Comment moderation used to take hours on the Sac Bee Web site. I realize a paper has the undeniable right to edit those comments, but I'm curious to know what legal incentive they have to do so. Has anyone ever successfully (or unsuccessfully) sued a newspaper for not editing the comments on their Web site? If a reader is anonymously libelous, is the newspaper really responsible for that?

There doesn't seem to be a definative answer to this one. I was, however, pointed by one of our lawyers towards a blog that discusses the matter. The case discussed in this blog actually deals with a posting board site, like Craigslist, as opposed to a newspaper, but seems to address some of your issues. The below quote and subsequent link reflect the opinion of the author, Eric Goldman, not those of CNPA.

Quote :

May 15, 2007 [...]

On the surface, it seems like it would be hard for Roommates.com to claim 230 protection for the resulting data, because the literal words are provided by Roommates.com. However, users select the words that describe their situation, so the words are really provided by the user but structured to ensure a more functional database. Further, in the Carafano case, the Ninth Circuit had given a free pass to another website operator that allowed users to select among structured data fields, so it seemed like there was directly defense-favorable precedent on point.

In this ruling, the Ninth Circuit found otherwise, based on a confusing part of the statute. Per 230, ICSs aren't liable for content provided by another ICP, and an ICP is defined as someone responsible in whole or in part for the content's development. There are two ways to read this part of the statute:

* Reading #1: So long as the ICS is responsible in part (any part, even 0.1%) for the development of the content, then the ICS is an ICP and 230 isn't available. This reading isn't very useful because it would apply whenever an ICS edited any third party content, which is exactly what 230 routinely has been held to protect.
* Reading #2: So long as any third party ICP was responsible in part for the content's development (even 0.1%), the ICS isn't liable for it. This means that the ICS could have a great deal of involvement in the content but still avoid liability. This is by far the dominant interpretation of the statute.

[...]

Yuck--what a hairball. With 3 largely inconsistent opinions from a 3-judge panel, and a lead opinion that significantly narrows a fairly clear and relatively on-point Ninth Circuit precedent (Carafano), this case seems ripe for an en banc rehearing. I could even see this case going before the Supreme Court (especially because it conflicts with so many other precedents, including Ninth Circuit precedent), although I think the pull-down menus would be a lousy test case for the Supreme Court.

Meanwhile, if the Ninth Circuit doesn't correct this opinion, and fast, I predict the following:

1) Websites will shy away from gathering structured data from users. This is silly, of course, because structured data can be more useful for users, but this ruling makes structured data much more risky.

2) Craigslist will lose its very similar case in the Seventh Circuit. The Seventh Circuit already had some bad 230 dicta in Doe v. GTE, and this opinion will give the Seventh Circuit judges all the ammo they need to hold Craigslist liable.

3) Plaintiffs are going to have a field day with the language in this opinion, especially as Reinhardt reformulated the test. I predict lots of new lawsuits probing this opinion.

Read the whole post

Recently, iBrattleboro.com became embroiled in a libel lawsuit for a comment posted to their website.

Quote :

According to the complaint, on September 30, 2007, Dunn authored an article in which he

states without specificity general sexual liaisons are being conducted on the premises. Then he names Ms. Mayhew, further stating that she is conducting an "affair" with a "married member of the Rescue, Inc. board of trustees" indicating that this behavior was happening during "on call" hours at the agency.

The complaint doesn't appear to make any allegations that Grotke or LePage authored the allegedly defamatory statements, only that they failed to edit or remove the comment. As a result, Grotke and LePage are almost certainly shielded from liability under section 230 of the Communications Decency Act ("CDA 230").

Read the details of the lawsuit