Blog Comment Legal Issues in the News

There is a new article out by Corilyn Shropshire (Pittsburgh Post-Gazette) inspired by the TP suit against Aaron Wall about the potential legal ramifications of comments in blogs against bloggers.

Since this is very much an interest of mine currently ;) , I'd like to look at the article. For the record, Corilyn did interview me.

The case has raised the ire of bloggers across the Internet, outraged and fearful that companies that don't like what is written about them can sue.

"This kind of thing raises my dander," said Ian McAnerin, a consultant and blogger who founded a search engine industry group, Search Marketing Association of North America. "The speed at which blogs are updated and comments can be made on them makes it very difficult to have editorial control," he added.

Mr. McAnerin said he expects more lawsuits like the one against Mr. Wall as the Internet and blogs become more commercial.

That worries what Mr. McAnerin calls "the little guy," individual bloggers without financial or corporate backing, such as Greg Jarboe. The Acton, Mass.-based blogger runs a search engine-focused marketing firm. "I have a blog, and I call them like I see them," said Mr. Jarboe. "I like to think it's my First Amendment right."

Just to be clear, I never mentioned Greg Jarboe (I didn't even know he had a blog) so although it looks like I used him as an example, I didn't. Nothing personal against Greg, but I prefer to not have words or references put into my mouth. It's possible it's just worded in such a way that I'm not interpreting it properly, but that's how I read it.

I'm still kind of annoyed at him for being the conduit for this drivel:

It is the policy of SEMPO not to comment on any legal cases pending, particularly those that do not directly involve our organization. This matter in particular will be decided under existing case law relating to freedom of speech, libel/slander, and contract law. There is no compelling reason for a nonprofit group with a mission of education and market expansion to become embroiled in a legal discussion unless there is a specific reason for it such as providing expert opinion on definitions or methodologies; and if we had been solicited, then we certainly wouldn’t be able to comment.

I didn't see SEMPO standing up for anyone earlier. So it's not an issue until they come knocking on your own door? Come on. That's just not right.

Having said those nitpicks, it's a pretty good article - too bad TP's lawyer never seems to respond to anything. I suppose it might be a case of "when you find yourself in a hole, stop digging and put down the shovel", but of course I don't know. Maybe it's a master plan or something...

The important part of the article, of course, is this issue:

Will bloggers be treated like newspaper reporters, protected by the First Amendment but subject to libel and defamatory laws, or will they be treated like common carriers," such as telephone companies, and not held liable for what other people write and say? Section 230 of the 1996 Communications Decency Act protects Internet service providers and Web sites from liability for information posted by third parties. But the courts have yet to decide if bloggers enjoy those same privileges. It's his job to convince the court, Mr. Stern said, that bloggers fall in the same category as Internet service providers and Web sites.

Naturally, I'm on the side of blogs being more of a "common carrier" than a "publisher". But it's kind of complicated. See, a blog is a bit of both.

When a blogger writes what they write as an article, they can't turn around and claim they can't be held responsible for their own words just because it's on a blog. Having a blog does not relieve you of taking responsibility for your own actions and words.

Now, of course there are all sorts of defenses such as Freedom of Speech (though that usually only applies to governments), fair comment, personal opinion, fact, discussion of a public figure, and so forth. These obviously apply to all bloggers and, indeed, all writers period - blog or not.

But there are 2 parts to a blog - the original blog entry made by (usually) the owner of the blog, and the comments by others about the entry. These comments are the sticking point, and the area of contention.

It boils down to this:

1. The blogging software company (ie Blogger, in my case) is clearly a common carrier under the law and isn't responsible for what a blogger writes, as they have very little control over it.

2. The blogger is clearly a publisher with regard to their own posts on their own blog. They have total control over what they say and how they say it.

3. The people making comments are a totally different issue. On one hand, you could argue that the blog owner can exert control over their posts. One the other hand, this isn't how it's normally done. - blog spam being a perfect example of the lack of control in this case.

It all boils down to control. Control equals responsibility, most of the time. The more control you have over the results, the more responsible you are for them.

Just because a common carrier *can* exercise control doesn't mean that they do, or should be expected to. If they did, they would probably lose their common carrier status.

So what about bloggers? Should they be expected to exert large levels of control over the comments in their blogs? See, it's not a case of exerting *some* control - it's unavoidable in some cases. But just because a common carrier will often act against an obvious spammer on their network doesn't mean that they are exercising enough control to stop being a common carrier. But it certainly makes it harder to draw the line.

Some have argued that there is a middle position, often called a "distributor". This is the equivalent of a newspaper stand that distributes the newspapers, but has no control over their content. The thinking was that the distributed is not liable unless they know that the publications they are carrying are libelous, at which point they would be required to remove them.

This sounds like it might be the appropriate approach to the comments (it's what TP may consider arguing), but it's not that simple.

First, the courts have held that there is no such thing as a special "distributor liability" - a distributor is just another kind of publisher. However, they have also acknowledged that if you had to check with your lawyer every single time someone complained on the internet about something, you'd go broke - it's just not feasible.

Further, the natural tendency for people in that position would be to simply ban everything, which would result in an unwanted "chilling effect" on speech. Since the reason for this effect would be the response to the law, the First Amendment became involved and things got messy.

"Any attempt to distinguish between 'publisher' liability and notice-based distributor' liability and to argue that Section 230 was only intended to immunize the former would be unavailing. Congress made no distinction between publishers and distributors in providing immunity from liability. As the Fourth Circuit has noted: '[I]f computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement--from any party, concerning any message,' and such notice-based liability 'would deter service providers from regulating the dissemination of offensive material over their own services' by confronting them with 'ceaseless choices of suppressing controversial speech or sustaining prohibitive liability'--exactly what Congress intended to insulate them from in Section 230. Zeran v. America Online, Inc., 129 F.3d at 333. C.f. Cubby, Inc. v. Compuserve, Inc., 776 F.Supp. 135, 139-40 (S.D.N.Y. 1991) (decided before enactment of Communications Decency Act)."

So, now we are at Section 230 of the 1996 Communications Decency Act. Feel free to read it for yourself. First, the relevant passage is:

Treatment of publisher or speaker. 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.

Sounds great! What exactly does that mean? Well, clearly the lynchpin in the passage is the term "provider" If I'm not responsible because I'm just providing what some other provider created then I'm home free. So we need to know what a provider is in context of this act, and then see how that would apply to a commenter in a blog.

Let's look at the definition of "provider" then:

Information content provider. The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

Hmmm... Anyone responsible for the creation or development of information provided through the Internet sounds like "anyone posting their own stuff on the internet". In view of the fact that internet forums were firmly in mind (AOL and Prodigy specifically) when this was passed, I think that's a reasonable interpretation.

The law is also clear that only publishers and speakers are liable - not common carriers, etc. I think everyone can agree that the poster is also the publisher of their own posts.

"User of an interactive computer service" pretty clearly includes website users, I think.

So, to do a cut and replace, that would imply that this passage means:

"No poster or website user shall be liable for information provided by another poster."

I think that pretty clearly spells out the rules for blog comments.

My opinion,

Ian