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Website operators face legal compliance challenge when moderating user comments, says expert

The challenge of remaining compliant with a complex and sometimes contradictory legal framework might explain why media companies and other hosts of online content are stopping users from commenting on articles published on their websites in increasing number, an expert has said.21 Aug 2015

A report by the BBC recently highlighted that a number of news publishers have stopped users from leaving comments on stories on their websites.

The BBC's report gave two examples of websites that have recently shut off comments – The Verge and The Daily Dot.

Both outlets published blogs explaining their reasons for shutting off the comment facilities on stories. The Verge's editor-in-chief said comments and commenters were "getting a little too aggressive and negative" on the site, whilst two senior staff at The Daily Dot highlighted the problem of online 'trolls' and challenge of moderating comments in a way that facilitates broad discussion.

The Daily Dot blog said it will better serve its communities of users by devoting resources to engaging with users through social media and predicted that other publishers will soon find too "that their existing commenting systems do not serve their readers as the conversation continues to move off websites to social media, where most of our content is discovered and consumed".

Media law expert David Barker of Pinsent Masons, the law firm behind Out-Law.com, said that hosts of online content might also be taking legal issues into consideration when deciding whether or not to continue operating comment sections.

"Whilst websites might be keen to present issues with the quality of comments or commenters as the reasons for the closure of comment facilities on their sites, the underlying reasons for doing so might stem from the potential legal liabilities they face in enabling user comments and the increasing difficulty in mitigating that risk," Barker said.

Barker said that the legal framework in the UK relevant to operating user comment sections is "somewhat unsatisfactory".

"The relatively new Defamation Act, and the associated Defamation (Operators of Websites) Regulations, reflects the UK government's policy that, in general, website operators should not be held liable for defamatory statements by users," Barker said. "The Act requires people who have been defamed first to attempt to seek legal redress against the person who has made defamatory comments, as opposed to the websites that host them. Website operators can be held liable for comments they host in some circumstances but can follow a process to enjoy a defence against that liability under the Act."

"The idea that posters of objectionable material should be held responsible for their actions is also reflected in our criminal law: for example, we are now are starting to see prosecutions under legislation dealing with revenge porn," he said.

"However, this position is made murkier by what the Grand Chamber of the European Court of Human Rights said in a ruling earlier this summer. It said news websites may in some circumstances be required to proactively remove unlawful user comments on their stories as soon as they appear to avoid being liable for defamation. In that case news outlet Delfi had in place a system to monitor for certain objectionable comments, and was also responsive when users notified it of objectionable posts. This was not enough for Delfi to avoid liability," he said.

Barker said that a central point to the ECHR's judgment is the distinction between the role of genuine neutral hosts of online content and websites that exercise a substantial degree of control over the comments that appear, such as through close moderation and notice-and-takedown procedures.

"As the ECHR's judgment made clear, the extent of control website operators have over comments posted on their sites will be a factor in determining liability," Barker said. "Many website operators might take the view that removing comment facilities altogether is more desirable than moderating comments closely and increasing their potential legal liabilities for unlawful comments that slip through the net," Barker said.

"This has some worrying implications for freedom of expression. If we think about the evolution of the internet, in its infancy it was really about static content but we have all become very used to interacting with the internet, user generated content, etc. Many will regard it as a very negative development if website owners become increasingly and instantly liable for anything that is posted on their site by a third party," he said.