Though there are few verdicts to help lawyers and site
moderators come up with hard and fast rules, it is generally
believed that a web publisher who does not pre-screen user comments
is not liable for libellous or otherwise unlawful comments because
they had no editorial involvement in them.
Sites which pre-screen all comments are generally deemed to
share responsibility with the poster because they have chosen to
publish any comments that appear.
But one moderating veteran has said that when unscreened
comments appear under news stories the publishers of the site could
be liable for them.
"Many lawyers I've spoken to now view the invitation of content
– so if you have a comments section at the end of an article on a
newspaper site – they view that as inviting comment and therefore
you are responsible for it and therefore you probably want to
consider pre-moderating all the content that goes there," said
Danny Dagan, a moderation consultant who has helped establish
online communities for The Sun newspaper, amongst others.
Dominic Sparkes is operations director at Tempero, a moderation
firm that spun out of broadcast network ITV. He agreed that the
view on news story comments had become common, but said that a
recent judgment in the UK by Mr Justice Eady might change that.
That ruling, reported on OUT-LAW.COM, said that comments on
bulletin boards and online discussion groups are more like slander
than libel because they are more informal.
"I think that does get talked about a lot but I think the
Justice Eady case might change that slightly," said Sparkes. "I'm
not sure if there's enough case law yet to have a hard and fast
rule on that in terms of what is said online."
Mr Justice Eady had written in that ruling: "[Bulletin board
posts] are rather like contributions to a casual conversation (the
analogy sometimes being drawn with people chatting in a bar) which
people simply note before moving on; they are often uninhibited,
casual and ill thought out. Those who participate know this and
expect a certain amount of repartee or 'give and take'."
"When considered in the context of defamation law, therefore,
communications of this kind are much more akin to slanders (this
cause of action being nowadays relatively rare) than to the usual,
more permanent kind of communications found in libel actions," said
the ruling.
Dagen and Sparkes were speaking to technology law podcast
OUT-LAW Radio.
John Mackenzie, a litigation partner with Pinsent Masons, the
law firm behind OUT-LAW.COM, disagrees with Dagen and Sparkes.
"It is likely that the courts will focus on whether or not a
publisher reviewed content, rather than the form of the
publication," he said. "It isn't likely to make any difference
whether or not it is an invitation to comment or a bulletin board.
They amount to much the same thing. If the comments are not
moderated, the publisher is probably safe, at least until notified
of any allegedly defamatory posting."
