Forum Owners and the Law

There have been some pretty "authoritative" statements relating to cyber law and Forums that I think are misleading at best and need to be cleared up.

Here are some of the issues:

A common-carrier is not generally liable for statements they are involved in disseminating any more than the phone company would be. This is legislated in the US via the CDA s. 230 and is acknowledged in Canada, UK and Austrailia under common law, at least.

A distributer is also usually not liable. This covers newspaper carriers, news stands, etc.

A publisher/editor very often IS liable. The issue becomes: is a forum a provider, distributer or publisher?

The answer, IMO, is it can be any of them. Let me explain.

If you practice no effective control over the content of your site, then you are generally considered a distributer or common-carrier. If you practice complete control (for example, pre-moderating) then you would be considered a publisher and would typically be liable.
Forums tend to fall in between these two extremes, and therefore blanket statements regarding liability (or lack thereof) are highly misleading.

It's all about control.

Rule of Thumb: If you have control, you have liability. If you don't and can't be reasonably be expected to, then you don't.

This is basic to most legal systems world-wide, not just for libel but for most other torts and a good portion of criminal law. There are some exceptions, but usually only in the case of clear legislation that overrides this principle on purpose, and they are usually only constitutional if the potential negative results of a wrongful application are minor (ie a regulation resulting in a fine, as opposed to a jail sentence). It's strongly related to the principle of mens rea.

Here are some examples of someone saying libelous things about someone else on a forum and the probable result under different circumstances. Lets assume that the statements are libel for now to make things easy. The stated results are the most probably result given current rulings, but should not be considered definitive (anything that isn't a ruling by a supreme court should not be considered definitive).

1. The forum is pretty much an internet newsgroup with anonomous users, absent administrators (or ones that only monitor uptime, rather than content) and no moderators. Result: Forum not liable as common carrier in US, in the UK it's the Internet Defense, or "innocent dissemination".

2. The forum does not pre-moderate, but has a group of moderators and admins reserve the right to edit posts. Result: Forum not Liable in US (Schneider v. Amazon.com, Inc.) I suspect it might be liable in other places, but there is no clear case law yet that I could find. The UK puts the onus on the defendant rather than the plaintiff as in the US, so I suspect they would be liable in the UK. In the UK, you pretty much have to prove complete "innocent disemination" or you fall into the other side of things and are liable

3. The forum requires a login and tracks users, and all posts are pre-moderated or checked by an editor before posting. Result: Forum liable as publisher/editor

4. The forum does not pre-moderate, but has an active group of moderators and admins who routinely remove libelous material and the libelous material "got through". Result: forum liable, but can protect itself by removing libelous material quickly when brought to it's attention In the US, a distributor of defamatory material who is not primarily responsible for the material's content is liable only if that distributor knew or had reason to know of the material's 'defamatory character. Many forums fall under this group.

5. The forum does not pre-moderate, but has an active group of moderators and admins who do not remove libelous material but do actively remove other material.Result: Forum liable since the decision NOT to edit is editorial in nature, rather than oversight or mistake. I believe forums that agressively "out" spammers and assorted alleged scum fall under this category.

6. The forum does not pre-moderate, and has an group of moderators and admins who frequently add or contribute libelous material. Result: Forum liable as publisher as well as author.

In all cases, the original party stating the libel is liable (Tambwo v. Calvin). However, in cases where liability is joint and severable it's usually easiest to go after whoever has the most money or is easiest to find, which is often the Forum, especially when it's hard to track down the original poster.

Ironically, the forum owners biggest asset, it's moderators and administrators, is also it's largest point of potential liability. Although moderators are often not employees, they can be held to be agents, and therefore can result in the liability of their principle. They are acting on behalf of the forum with knowledge and permission of the owner and therefore can cause liability to arise. So you could find yourself in trouble if you (as owner) or a moderator/admin chimed in and added to the libelous thread, since that not only makes them liable individually, but shows an editorial control and decision regarding the original post (the decision not to edit, in this case).

I'm not certain what would happen if a mod/admin told the original poster that their post was a bad idea to post, but chose not to delete or edit it. I think it would have to be dealt with on a case by case basis and would hinge on what was "normal procedure" for the forum in question.

The above doesn't even get into the issues related to the international aspects of the internet. The US rule is that you need to have a firm nexus in order to be sued in a different jurisdiction from the forums "home" ( Stanley Young v. New Haven Advocate, et al.) But an Austrailian ruling about a month ago has challenged that. (Dow Jones). basically if you have a substantial number of subscribers/readers in a country, that's enough to form the nexus for that country, was the ruling.

If a forum has members in China, they can be sued under Chinese law, according to this. Canada is already leaning towards this concept, and I suspect most other countries will, as well. It's unlikely they will simply accept the highly US-centric (and state-specific) rule the US uses. I suspect also that it's a matter of time before the US changes it's mind, as well, if only to allow it's citizens to sue foriegn publications diseminated on the internet. Right now they can't, and I doubt that will last for long.

Naturally, all this assumes that the statements are truly libel. If you "out" a spammer and they really are a spammer, then you have the defense of truth. This isn't the time or place for a discussion on what libel is or isn't, so I'll stop now.

Ian