Moderating Comments and Liability

A recent judgment of the England and Wales High Court, Kaschke v Gray & Anor [2010] EWHC 690 (QB), dealt with a potential libel that occurred in a post on a blog, Labourhome.org, that opens its facilities to “Labour grassroots” to “discuss the issues important to them.” As OutLaw.com, which has the story, says

Hilton claimed in his defence against the libel charge that, though he ran the site, he did not edit or vet the articles and should qualify for the same safe harbour that was granted to search engines or ISPs.

That safe harbour is granted under EC legislation.

The judge said Mr Hilton’s involvement, even minimal, could forfeit the protection of the legislation:

Mr Hilton stated in terms that where a blog is promoted by him he may check the piece for spelling and grammar and make corrections. That in my view arguably goes beyond mere storage of information . . . The fact that Mr Hilton on a few occasions removed blog posts on grounds of bad language, political provocation or offensiveness falling short of defamation again in my view makes it at least arguable that the service provided in respect of those individual blog posts and also in respect of the general service consisting of making available webpages on his website for such blogs to be posted consisted of more than mere storage.

This case has no direct applicability to the Canadian situation, of course. But it does cause blog owners to wonder about potential liability for material in comments, where those comments are moderated. If “moderation” means vetting and approval, it seems fairly obvious that the blog owner has published the material and might therefore be liable. A number of questions arise, however: what would be the liability where some comments are moderated and some are not, as is the case on Slaw, where once you’ve had an approved comment, your further comments bypass moderation? Would a blog publisher here, as has been suggested in England following Kaschke, be better off avoiding moderation altogether and only responding to complaints made after publication?

Comments

  1. My guess (not informed by a law degree) is that in Canada bloggers are considered responsible for comments on their blogs, whether moderated or not. This hasn’t been tested in the courts as far as I know, though, so it is a grey area.

  2. All I know is that XXXXX XXXXXX is completely unprincipled and incompetent. But that is nothing compared to XXXXX XXXXXX who is a crook…………..

    :P

  3. Other related stories in the news today:
    NY Times is reconsidering anonymity policy for online comments.
    Two Halifax firefighters are asking the SCC to reveal the names of people they claim defamed them on an online newspaper site.

  4. This English decision puts the law there more or less where it was in the US after Stratton Oakmont in 1995 – any moderation was fatal to immunity. That’s one of the motivations of s. 230 of the Communications Decency Act of 1996 – about the only section that has survived – immunizing mere posters, and some moderation can be allowed. Of course plaintiffs’ lawyers have spent the last 14 years trying to get around the immunity, and have occasionally, but rarely, succeeded.

    I have wondered aloud (i.e. on a mailing list) if Canada needs legislation protecting intermediaries, without much of a response. There are many kinds of intermediaries, of course, and the same rule is not necessarily appropriate for all.

    We’ll see what the SCC does with linkers’ liability in due course. Not the same as a blog, or web site, or moderated discussion site.