The Legal Issues with Comments

Filed as Features, Guides on August 13, 2007 12:30 pm

The decision about whether or not to allow comments on you blog is easily one of the most important decisions that any new blogger will be face.

Though allowing comments on a site opens up a new level of interactivity as well as an excellent opportunity for free content, it also introduces a set of entirely new problems including spam and potential legal issues.

But while plugins and filtering services exist to help bloggers deal with comment spam, there is precious little to help them deal with any legal concerns. Giving strangers free reign to post information to your site, without any editorial oversight, is a scary thing, especially in today’s legal climate on the Web.

Fortunately, the laws that deal with comments on the Web are largely designed to protect Webmasters and most of the legal concerns that stem from allowing comments on your blog are easily dealt with.

In short, there are many reasons to not allow comments on your site, but concerns over legal issues likely isn’t one of them.

Libel/Defamation

Since exchanges in blog comments often get heated and involve negative statements about third parties, one of the first concerns that leaps to Webmaster’s minds when considering publishing comments is their liability should a commenter libel or otherwise defame another person (Note: Slander is spoken defamation and is not likely to arise from comments).

In the United States, fortunately, the law has been written to protect bloggers and other “interactive computer service providers” against libel torts for material that they did not write themselves. This was codified into law by Section 230 of the Communications Decency Act of 1996, which said “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.”

In short, the law prevents someone from suing yourself for comments made by a user of your site. No one can treat you as if you were the speaker just because you unwittingly provided the platform for the libel. This protection applies even if you edit the comments, so long as you do not change the meaning or otherwise add libelous statements yourself, and is expanded to other torts that might stem from a libel suit including negligent misrepresentation and emotional distress among others.

However, it is important to note that Section 230 does not protect you against comments that you made yourself, either in your posts or in comments submitted by you, and that it does not defend you against being subpoenaed and forced to testify in a libel case that does emerge, such as what happened to blogger Shoemoney.

Also, it is important to remember that the Internet is global and that other countries have different laws on this matter. If the person being libeled is in another country other laws may apply. Also, some states have laws that can be used to target blog owners, such as tortuous interference, that might still apply. Though the odds of such a case are almost nonexistent, it is worth nothing that dangers.

Finally, even though Section 230 does not require a provider take down a libelous statement, it is probably wise to do so once informed. Not only could the law be revised, but acting in good faith to avoid conflict is almost always better than escalation.

All in all, there is very little reason for a blogger to worry about libel in their comments. The law was written carefully to protect not just bloggers, but forum operators, Web hosts and others that provide a platform to publication on the Internet.

Copyright

Another concern for bloggers, especially those that encourage commenters to post original works, is the possibility of copyright infringement. However, in a manner similar to libel suits, the law was written specifically to protect bloggers and other service providers from being liable for infringements they had no knowledge of.

The law of interest is the Digital Millennium Copyright Act of 1998 (PDF), which offers “safe harbor” to Web hosts and other providers given that the following statements are true:

  1. The provider does not have knowledge of the infringement.
  2. The provider does not profit directly from the infringement.
  3. The provider, once properly notified, acts expeditiously to remove or disable access to the infringing work.

The law also stipulates that the provider, in this case a blogger, should also register a “designated agent” with the United States Copyright Office and create a copyright policy in order to receive full protection. However, as of this writing many companies, including some major Web hosts, do not submit such registrations and no court case that I have been able to find has found a host not to be protected simply due to a lack of registration.

So, while registration is a good idea to ensure full protection, it is much more important to make yourself available to receive complaints of copyright infringement and to act on them expeditiously.

If you do that, the odds of being held liable, or even being sued, for copyright infringement are practically nil. If you are a major site that feels you have a high level of risk for being involved in a copyright matter, registration with the USCO might be a reasonable option. However, since most comments carry little to no copyright risk, it likely isn’t necessary for most bloggers.

The most important thing, by far, is to take these matters seriously and respond when given proper notice. Doing so can avoid not just a potential lawsuit, but other headaches down the road.

For more information on this topic, including setting up your own copyright policy, see the EFF’s FAQ on intellectual property for bloggers.

Trademark

Though rare, blog comments can raise trademark issues as well, especially in cases where the commenter pretends to be a representative from a company or presents himself in a way that can be confused as such.

This could, theoretically, put the blog owner at risk of being sued for secondary trademark infringement. However, such a suit would be almost impossible as the blogger would have to be aware of the infringement, which isn’t likely when dealing with comments, be in a position to receive some benefit from the infringement, also unlikely with blogs, and have the ability to control/monitor the infringement.

The chances of a trademark infringement case being levied against a blogger for comments made in their blog is slim to none. Trademark law was written very carefully to protect parties that have no knowledge of such infringement.

The likely worst-case scenario involving trademark would be a cease and desist letter asking you to remove the offending comments. In such a case, it is wise to comply. Once you have knowledge of a potential infringement, this risk of liability goes up significantly.

All in all, trademark law was an area that did not need significant updating to work on the Web. The law, even before the Internet, closely mirrored what we now see with libel and copyright issues and, as such, the platform of expression is protected in most cases.

Conclusions

Though there are a whole host of legal concerns associated with opening up commenting on your blog, the actual legal risk, in most cases, is very slight.

If you accept comments or other user input to your site, it is important that you or a representative be available at all times to handle complaints and that you treat such complaints with seriousness. The first amendment applies to Congress and the Federal Government, it does not apply to private forums or blogs. You are free to restrict speech on your site as you see fit.

Of course, unnecessary censorship will cause more problems than it solves, If you are uncomfortable with negative comments and criticism, perhaps disabling comments is a better idea. However, you certainly have the right to remove any and all comments that you feel might bring legal trouble to your door.

All in all, there are many reasons to consider dropping comments from your blog, but legal issues should not be one of them. In the vast majority of cases, if you approach commenting with good faith, the risk is very low and you are more likely engaging in riskier behavior in your blog itself.

With that in mind, it is still very important to be careful about what you say and publish as the protections offered to you for what your commenters say do not apply to your own words.

Everyone can be held accountable for what they post, just not what other people say, at least in the vast majority of cases.

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  1. Cool Links 8-13-07August 13, 2007 at 7:25 pm
  2. Linker Barn: Tuesday, August 14August 13, 2007 at 11:35 pm
  3. By Tom Clarke posted on August 14, 2007 at 4:45 am
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    Yeah, I think the potential benefits of allowing comments on a blog (mainly the much higher return-user rate) by far outweighs the possible downsides. I find Akismet to be very reliable and while I do occasionally find the odd comment which has been erroneously marked as spam, it pretty much never happens the other way around.

    On the legal side, a firm editorial grip should ensure that any problematic comments are assessed quickly and dealt with as necessary.

    Reply

  4. By Tish Grier posted on August 14, 2007 at 6:23 am
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    Jonathan–I think you’re confusing personal blogging and business blogging. Allwoing comments has *always* been integral to blogging. That’s why we blog. Business bloggers–as in those blogging for a corporation, not just for your own consulitng concern–have much more to think about regarding comments (much more than you cover here) And comments are NOT about giving someone “free content”–that’s a jaundiced view of comments that reeks of someone who beieves that blogging’s all about makng money for himself. Comments are usually about having a conversation with the blogger. If you’re going to be paranoid about comments, then don’t blog.

    Reply

  5. By Jonathan Bailey posted on August 14, 2007 at 9:33 pm
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    Tom: I agree that Akismet is wonderful but lately I’ve fallen in love with reCAPTCHA. Though I usually hate CAPTCHA systems because they don’t work, reCAPTCHA actually does and it has benefits beyond preventing spam. Since I installed it two weeks ago, I’ve had exactly zero spam.

    Tish: Good point there. I probably should have mentioned the conversation element more directly. As far as the “jaundiced view” that really comes more from my background on copyright and search engine optimization than money. Believe me, if I were in this for money I would have picked a different field ;)

    But yes, you are correct, there is a huge conversation element to it and I was remiss to leave it out. My apologies.

    In my rush to discuss the legal issues, or at least some of the larger ones, I omitted something important. I hope you can forgive.

    Reply

  6. By Tish Grier posted on August 15, 2007 at 5:43 am
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    Hi Jonathan,

    thanks for replying to my comment (and also for coming over to my blog and commenting) And I compleley understand about not being in it for the money ;-) Thanks for clarifying your point of view on this–and I see it much clearer. Ther is, I’m sure, ways that we can discuss the important legal issues (and you’re right that they’re important) with also understanding the community aspect of blogging. Perhaps I shouldn’t have been so tough in my critique–because, perhaps, we are in many ways on the same page.

    Reply

  7. By Chris Tindal posted on August 15, 2007 at 5:31 pm
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    Jonathan — One other angle I’m not sure you’ve considered. Since the internet is global, bloggers are vulnerable to the “lowest common denominator” of libel law. Just because they’re protected by US law doesn’t make them safe. I’m currently being sued in the courts of British Columbia (on the grounds that I’m responsible for alleged libel that takes place on sites linked to in my blogroll) even though I live in Ontario. The same individual is also suing American companies Wikimedia Inc., Google, MySpace, Yahoo!, and more, using BC law. As I understand it, anyone, blogging anywhere, could be sued in the courts of BC on the grounds that their blog was “published” there via the internet.

    Reply

  8. By Jonathan Bailey posted on August 20, 2007 at 1:06 pm
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    Chris,

    That’s something I kind of glanced over under Libel/Defamation. It is global and, yes, you can be sued just about anywhere, that is especially dangerous with Libel law as the defamation takes place where the other person is. Compare that to copyright infringement where the infringement takes place where you are.

    It’s a scary thought and, though what happened to you is bad enough to send chills up my spine, it could have been worse. Imagine, for a moment, if the suit had been in Britain, or in Russia. It could have been much worse.

    I am glad that you are fighting the suit and please keep me up to date on how it goes! I will be very interested to hear what comes of it.

    Reply

  9. Plagiarism in Your Own Ranks : The Blog HeraldAugust 27, 2007 at 9:21 am
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  11. By Philip John posted on April 30, 2009 at 6:07 pm
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    I’m only just getting into the legal issues of blogging (long after I should) and found this post very helpful, thanks. I’m in the UK so still have a lot of digging as I’m not sure us British bloggers get the same protection from the law as Americans. Though, the comments on British Columbia are concerning to me.

    One thing I picked up on, which I hope you can clarify is this matter of having knowledge of the infringement. Personally I wouldn’t accept a blogger saying “oh I didn’t see that comment.” I think that would be a pretty lame excuse. That’s like our PM saying “oh I didn’t know what my closest aide was up to.” (See Damien McBride scandal.) So would that really wash with a court, or am I mis-interpreting the point you make?

    Reply

  12. By Chris Tindal posted on April 30, 2009 at 8:51 pm
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    In Canada there is a defence known as “innocent dissemination,” meaning that you can claim you’re not responsible if you didn’t know the alleged libel had been published. There’s a similar defence in the US as well. The publisher still needs to act responsibly, however. (For example, if a comment is brought to their attention, they need to act promptly as appropriate.) IMO this is an important and fair defence, partly because without it only those with the resources and legal knowledge to moderate comments would be able to turn them on. Look up “innocent dissemination” in Wikipedia.

    Reply

  13. By protector102 posted on July 12, 2009 at 12:54 pm
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    Thank U very much for the tips and its very fruitful for me, I’m agree with “Tish Grier “.

    Reply

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    Its a better blog and it always presenting measure cases legal issue with comments is one of them,so its a good job no doubt and thanks to you.

    Reply

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  22. A comment policy for your blog « onecoolsitebloggingtipsOctober 21, 2010 at 11:25 pm
  23. By Calvin John Mcphee posted on July 19, 2013 at 2:48 am
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    It’s really hard to talk or comment carelessly now. Even the slightest mistakes will create fuss.
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  24. By Luis Mier posted on July 25, 2013 at 5:04 am
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    Reply

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