Just One Question for Jason Schultz
One of the things that always comes up when I talk to people at companies about community systems is the fear that getting involved with the comments on their site makes them more liable. I’ve denied it until I was blue in the face, but they don’t always believe me. So I decided to ask an expert: Jason Schultz, EFF Fellow and Associate Director of the Samuelson Law, Technology & Public Policy Clinic at U.C. Berkeley Law School.
Derek Powazek: Does moderating comments on a website make the website owner more liable?
Jason Schultz: This is an important question that a lot of website owners have. The short answer under U.S. law is that you are right, website owners generally are not liable for comments on their site, even if they moderate them. Here’s the longer answer:
First, one has to ask, “liable for what?” There are essentially three categories of comment content any website owner should worry about: (1) criminal content, (2) copyrighted content, (3) everything else.
For criminal content, once you are aware that it is criminal, you should contact law enforcement immediately and they will tell you whether you should take it down. Either way, they will likely ask you to archive it. But you should definitely not ignore it. Criminal content includes things like child pornography.
For copyrighted content, you should (as you suggest) follow the outline of the DMCA safe harbors. This means registering a DMCA agent with the copyright office, having a posted policy and active email or snail mail address for takedown requests, and complying with valid requests in a timely manner. If one does this, there is little to no risk of being held liable, even if you moderate the comment with the copyrighted content in it.
The only exception to this rule is copyrighted content that is considered “red flag” content – content where it is so obvious that it is infringing, you cannot turn a blind eye to it. How obvious is still being debated in the courts, but one court has held that even hosting or linking to image sites named “www.stolencelebritypics.com” or “illegal.net” was not sufficiently obvious to trigger the red flag requirement.
Finally, there is “everything else” which includes defamatory comments, harassment, abuse, etc. Here, website providers receive immense protection under Section 230 of the Communications Decency Act. As long as the website owner does not herself write or add text to the comment, she is pretty much exempt from any and all liability for hosting it, whether or not it is moderated.
The only exceptions to this rule are where the website owner encourages or suggests the offending language. So, for example, if you were to provide pulldown menus for comments that said “This person is a criminal” or “The above commenter has HIV,” that could fall outside the protections of CDA 230. However, short of something as blatant and directed as that, website owners are generally safe from liability for any derogatory comments posted by others.
Simply approving or denying comments does not make one liable.
Jason Schultz is an EFF Fellow specializing in intellectual property and Associate Director of the Samuelson Law, Technology & Public Policy Clinic at U.C. Berkeley Law School. Previously, he served as a Senior Staff Attorney at EFF, where he lead its Patent Busting Project and represented creators, innovators, and consumers in a variety of matters involving fair use, free speech, and reverse engineering. He received his J.D. from Berkeley and his undergrad degrees in Public Policy Studies and Women’s Studies from Duke University. He maintains a personal blog at lawgeek.net. Thanks, Jason!
(Props to Michael Sippey who did “Just One Question” interviews at Stating The Obvious way back in the day.)