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Slander In Comments – What are the Legalities?

I’ve been asked 3 times over the last few weeks what the legal implications of letting people post comments on your blog are and to this point I’ve never been able to point them to a case that I knew of where legal action was taken over comments.

But it seems that there’s a current case that involves Jeremy Schoemaker over at Shoemoney.

Jeremy doesn’t go into great detail (as you’d expect) but it’s a tricky issue (given the global nature of blogging) and one that I’ve been aware of in watching my own comments.

Just yesterday I had to stop a comment from being approved where one commenter accused another of being a pedophile – something that had lawsuit all over it.

Does anyone else know of cases where comments led to legal action?

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Comments

  1. Correct me if I’m wrong, but this just seems crazy to me. People taking legal action over blog comments? There are a lot of things in this world that just do not make sense to me.

  2. Ian Anderson says:

    I’m actually pretty surprised that this hasn’t happened until now. Americans are sue happy. Let this be a lesson to everyone to put disclaimers up on their sites to protect themselves.

  3. They’re suing the person that posted the comment, right? Because I just read an article the pther day that states there’s already a law that protects the person that owns a website from comments made by third parties.

  4. Brian Clark says:

    Well, not to be shameless, but this will be covered in Blogging Law 101 at http://www.tubetorial.com starting next Tuesday.

    And Vanessa, defamation (in this case actually libel, not slander) is taken quite seriously, not matter where it is published.

  5. I can’t speak for U.S. laws, but in Canada, libel is the type of defamation we’re talking about here since comments are in “print” and not spoken aloud orally:
    (from http://en.wikipedia.org/wiki/Libel)
    “defamation is a right of action for communicating statements that may harm an individual’s reputation or character”. Libel is a:
    “harmful statement in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast”

    Like anything to do with law, it’s more complicated than just a simple definition. For example, saying something in print that harms ones reputation or character but is demostrably and evidently true, is not libel. Calling Hitler a murderer would not be libel (assuming he was still alive).

    The thing to remember is: don’t say something unless you are fairly certain its true, and even then, think twice before attacking someone. Always attack their arguement, not them personally.

  6. wentworth says:

    it’s possible if the person can prove there was a loss.

    a typical (unsuccessful) action was when Oprah was sued for comments on her show regarding Cattle beef and the rachers said she caused their beef prices to drop.

    They lost their case.

  7. Steve says:

    From memory there was legal action taken against Aaron Wall by traffic-power.com after some disparaging comments were posted about the company on his weblog. He didn’t help the situation with a follow-up response. Google up ‘aaron wall sued’ for the details…

  8. Leroy Brown says:

    Steve,
    In the case you’re referring to, Aaron Wall was the owner of the site where the comments were posted? If so, that’s very disturbing indeed.

  9. brem says:

    You can’t be liable for other people’s action. You’re not an accomplice, you merely provide a discussion forum as a blogger.

  10. Bob Silber says:

    As you point out, the Internet is global, so there are other laws to be concerned with besides the U.S.. The Associated Press reported that at the end of June an Italion blogger was convicted of defamation in Italy, and sentenced to pay $16,900 in fines and damages.

    Blogs are Web sites, so the same legal rules apply. You certainly did the wise thing not approving the pedophile post. Anyone can sue for anything and as I tell my clients, does it really matter if you win, if you wind up spending thousands of dollars to defend a lawsuit? It is a nightmare even when you win.

    Against that background, let’s look at the law, understanding that every case is different and the law is never black and white. I’ve been taking legal questions from bloggers and this is a great question.

    Generally, As to liability of forum owners, there are many legal issues that can come into play, such as The First Amendment, the immunity protections (Section 230) of the Communications Decency Act (the “CDA”), other Federal statutes, and various State laws such as California’s Anti-SLAAP Statute.

    Congress has enacted laws that protect entities that provide forums for online information as opposed to those that post to those forums. Courts have generally said Internet publishers are immunized from most defamation lawsuits by the Telecommunications Act of 1996.

    In the area of defamation law, section 230(c) of the Communications Decency Act immunizes online Service Providers from liability for defamatory information that originates from third parties. In the area of copyright law, the Digital Millennium Copyright Act (DMCA) provides immunity to Internet Service Providers.

    That may sound good, but one must remember there are always exceptions, and being sued is costly and unpleasant.

  11. Wilson says:

    A blogger in Brazil was recently (this week) sentenced to pay R$3,500 (some A$2,000) to a person who was offended by an anonymous comment posted in his blog. The case started in mid-2004, but the sentence came out just now; I did not see the comment, so I don’t really know what was said in it.

    It’s a weird case, because the comment was posted in an article that was then already months old and stayed up for less than four days. The blogger is appealing.

  12. phd says:

    Just some comments to the above discussion:
    1. some types of libel/slander don’t require actual damages (depending on the state)
    2. There’s probably an argument to make that a blog comment is actually slander rather than libel because it could be considered more like a conversation or an unscripted television program. The permanency of blog comments would suggest it is libel … but my answer back to that would be that no one really reads old blog posts and takes the comments seriously. Have you seen the spam in on some old blog posts?
    3. I haven’t looked it up, but my guess is that the blog owner who allows the comment to be posted could also be sued. They are a publisher and I would argue that they would be a type of “secondary publisher” — they exercise the right to moderate the comments and even though they didn’t initially make the statement, they’re responsible for transmitting the statement to every person that visits their blog after the comment is left. Not sure if it is a winning argument, but it has some appeal.

  13. It’s a problem – I published a blog entry after receiving a number of emails from people who have had a bad experience with a large UK travel company.

    In the space of a few weeks, I received 80+ comments about this company from disgruntled customers, this blog entry appeared on the 1st page of Google for this companies name, and not long after I received a letter from the companies solicitors.

    I took the decision to take the blog entry down, which I hated doing because people were being treated badly by this company, but when they are threatening you with court, and your just a small time blogger, theres not a great deal you can do.

  14. Marc says:

    For the person who mentioned Americans being suit happy. Just for the record, Markus is Canadian.

    http://plentyoffish.wordpress.com/2006/09/02/shoemoney-libel/

    I completely understand where he is coming from though. He showed other people that he was very successfully making a go of a website he started on a shoestring and offered advice to others, then was completely trashed on blogs and in forums. Lots of wicked and unsubstanciated things were said about him by people whose only motivation appears to be jealousy.

    I think he is doing the right thing in the face of unrelenting defamation.

  15. Right before I came across this topic, I had been reading about a similar situation regarding http://mumsnet.com/ and comments about Gina Ford. Mumsnet is not backing down. I think it is a very interesting and amusing battle. It’s just my opinion that the law has been blown way out of proportion. Some people will do anything to win legal money.

  16. According to an article from the Wall Street Journal regarding a similar current case involving Aaron Wall of SEOBook.com:

    “In a key decision in 2003, the Ninth Circuit Court of Appeals in San Francisco ruled that the operator of a Web site can post material from others without liability for the content.”

    According to the same article:

    “At issue would be the court’s application of the federal Communications Decency Act, a 1996 law that, broadly, protects providers of computer services from being held liable for content posted by others.”

    “I think there’s a strong case to be made that [the Decency Act] applies to bloggers,” said Marc S. Martin, a lawyer with Kirkpatrick & Lockhart Nicholson Graham LLP in Washington, D.C., who specializes in technology law. It “was written very broadly, and the Ninth Circuit interpreted it broadly.”

  17. Just because I don’t think it is right does not mean it will not happen.

    We will have to watch this case, and any appeals, to determine what is legally reasonable.

    It would be nice if they limited the suit to the person that actually wrote the stuff.

    nice, but not likely.

  18. Dan says:

    I can’t speak to the specific case, but I do agree that people are way too sue-happy these days. I’d almost like to see a modification to our system where if someone initiates a lawsuit and loses they pay the attorney fees for the winner (based on average fees), but unfortunately this would have the side effect of limiting the legal recourse for the poor. But I’m sure if someone put their brain cells to it a good middle ground could be found that protects the less fortunate while limiting frivolous lawsuits.

  19. Mike says:

    Darren,

    I’ve got one.

    I blogged about the libel case put forward by the British organisation – Anglicans For Israel – and a comment about them that followed a blog post on Bartholomew’s notes on religion. Here’s my post on it, not sure where it ended up, but it’s probably still going…

    http://dcypl.com/node/152

    The issue in this case is whether it slander or libelous if it’s true, or a comment on something that is true.

  20. I imagine business blogs have to be very careful against writs from their rivals. On our Royal Anecdotes blog we have a big following of posters from the forums and sometimes they bite chunks out of each other. They regularly accuse the two girlfriends of Princes William and Harry of every vice imaginable. I’ve often had to intervene and delete comments, to the fury of all of them. Free speech is one thing, but wild accusations another, especially if you’re a commercial operation.

  21. In Malaysia, it’s quite common. In fact the government has previously taken action (police investigation) against a famous blogger for comments made on his blog. The government is also considering action against bloggers:
    http://www.ojr.org/ojr/blog/Events/410/

    Then again unlike the US, freedom of speech is merely “figure of speech” in Malaysia. I might be investigated for even saying this much :)

  22. I left this comment earlier, but it never showed up…

    According to a Wall Street Journal article published on 8/31 about a similar case involving Aaron Wall:

    “In a key decision in 2003, the Ninth Circuit Court of Appeals in San Francisco ruled that the operator of a Web site can post material from others without liability for the content.”

    Additionally, the article stated that the issue in this case (which I’m sure will also be the issue in the Shoemoney case) is:

    “At issue would be the court’s application of the federal Communications Decency Act, a 1996 law that, broadly, protects providers of computer services from being held liable for content posted by others.”

    “”I think there’s a strong case to be made that [the Decency Act] applies to bloggers,” said Marc S. Martin, a lawyer with Kirkpatrick & Lockhart Nicholson Graham LLP in Washington, D.C., who specializes in technology law. It “was written very broadly, and the Ninth Circuit interpreted it broadly.”"

  23. Tom Bailey says:

    It’s a sad world, but this may be what is needed — A disclaimer.

    It seems like if we added a disclaimer to the bottom of all comment sections that says something like:

    “You agree that your comments are yours and in no way reflect the thoughts and beliefs of the web site owner. You agree to indemnify the web site owner/operator against any and all claims of libel made against the web site owner/operator generated by your comments. You further agree if we approve your comments for publication it in no way lessens your agreement to indemnify the web site owner/operator of any and all claims made as a result of your comments.”

    Can we get an attorney to chime in on this?

    This type of verbiage would sure put a chill on comments.

    I think this ambulance chasing is just the sad growing pains of blogging going mainstream. It will get sorted out, but at a cost.

  24. Pewari Naan says:

    Tom Bailey: a disclaimer is a good idea, except that Mumsnet.com has a disclaimer and it doesn’t seem to have helped them one little bit. As I understand it, the law in the US protects third party publishers a little bit better than in the UK. UK libel laws need a major overhaul…

  25. jimmy says:

    This problogger site is very informative. I like this site very much. Darren is doing a very good job, to help others who dont know blogging. Great work darren.

  26. Actually, putting up a disclaimer is a wise thing to do.

    Many moons ago someone (a human political spammer) posted an item on one of my blogs on a post that was several months old. Aparently he wanted his comment removed, as it refered to someone in the office where he worked at and mentioned I could get sued if I didn’t (that was one of those “not happy blogger days”).

    I have since put up a comment disclaimer, as I do not have time (nor do I want to spend the money) for a court and lawyer.

    Moral of the story: Have a disclaimer if you live in the western hemisphere as people are sue happy here.

  27. Tucker Max (tuckermax dot com) was sued over comments left on his message board. Read the details (and hysterical official decision) here : http://messageboard.tuckermax.com/showthread.php?t=9316

  28. Vincent says:

    I haven’t seen it in the comments so far but there is a high profile case that occasionally makes the news headlines in Australia (I first saw it in the Australian newspaper) about the CEO of Sharman Networks, the parent company of Kazaa, suing a Canadian blogger and four anonymous commenters for defamatory comments. The four anonymous parties were listed in the court papers as John Doe, Jane Roe, Richard Roe, and Jane Roe!

    It has a long story behind it that you can find at the site being sued, p2pnet.net. One of the quotes from this site:
    “Under current Canadian law, intermediaries can face potential liability for failing to remove allegedly defamatory content once they receive notification of such a claim, even without court oversight.”
    and:
    “the United States enacted a law 10 years ago that provides broad immunity for intermediaries that host third-party content”

  29. In India we had a case where, a CEO of an auction site was arrested for some one putting porn on the website for sale. The company protested that they were selling thousands of goods and they were often posted without the company being aware of what was being put up for sale.

    The prosecution (Government) argued that it is upto the company to do due deligence and ensure the company doesn’t allow laws of the country to be broken. I think its a sensible argument.

    So looking at it from THAT perspective, a blog owner is responsible for whatever goes on the Blog. Who knows, tomorrow some terrorists might decide to put up radical messages on problogger, or msgs that attack (say) the USA govt, knowing that it will be read by an audience across the world. Is problogger then responsible for ensuring the removal of such content deligently or not? Or should you ensure that such comments are not posted in the first place? I think the latter is more sensible, since obviously otherwise, you will have to continously monitor comments on a ‘live’ basis.

    I have allowed free comments on my blog, but then my blog has a readership of a few hundred a week and not thousands a day, like you.

  30. Teresa says:

    Wow, I would say that this revolves around the fact that some people have absolutely no life outside of the internet and if someone insults them, it’s as if their life has gone awry. I’ve been in positions on the internet where one person has said something rather crass and off colour, but I’ve NEVER felt the need to sue this person. Truth is, this person ‘might’ get away with it as well since what was said had actually been logged and documented. It’s good news in a way, since maybe now the so-called “forum trolls” might calm down and stop slandering. It’s bad new in many ways because you just might not be able to say ‘anything’ since to some, this might be a great way to go and sue people for money. Just hope this doesn’t spark an epidemic of sorts..

  31. Alex says:

    There was something similar that happened to Slashdot. A commentor wrote something about a Microsoft trade secret (Or something to that effect), and the guys behind Slashdot ended up getting a cease-and-desist letter. They eventually removed the comment. However, I’m sure this was quite sometime ago. On my blog, I clearly state that we don’t take any responsibility for what commentors post, and I’ve never had any problems!

    -Alex

  32. Eduardo Maio says:

    Just asking, couldn’t this be a link baiting strategy?

    Linkbait 101:
    1. Sue Google / M$ or Yahoo
    2. Get sued from Google
    3. Let your blog friends sue each other and testify.

    Ok, I know, I’m just beeing paranoid, Jeremy doesn’t need that kind of “promotion” but it’s a strange coincidence.

  33. I know of a prolific commenter who is the subject of a legal investigation who has repeatedly libelled and slandered people. Comments are for making a point about a post – it’s not for people to flame and use it as a way to bully the author or other readers and when people then go to the trouble of putting slander up (or libel) it’s something that people will want to defend. Take for instance what has happened in this case where a prospective employer has done an internet search and come up with some of the crap that has been spouted by the offender. This person has also put up racist messages and accused someone of a crime that they most definitely haven’t committed. I do agree that people shouldn’t be racing around to sue but if it impacts on someone’s reputation and has the ability to complicate matters of employment, I can understand.

  34. holch says:

    Just a view weeks ago the German publishing company Heise Verlag had a law suite due to comments in their Forum. It is not really a blog but an IT news site, but hey, there is not much differents (what is a blog anyway? A system to make publishing easier). So this should apply to blogs also.

    Party 1 complained about comments in the forums (directly conected with the respective news). Party 2 (heise) said, that they could not check every comment. It went through several levels I think. Conclusion so far: Heise does not have to check every single comment. However, if they are aware of illegal comments they have to check and delete them. This means once they now about the problem, they have to act (e.g. they are informed about the problem).

    Well, that is for Germany.

  35. Doug says:

    I’ve actually had someone request that I remove comments from one of my sites because he was being slandered on it.. My knee jerk reaction was that I don’t remove comments, but upon cross referencing this person’s comments they were all of no value to the site or topics at hand and were purely out to bad mouth this person, so I wiped them out in a second. People without lives (especially teenagers) can turn anyone’s blog or site into a dumping ground for their personal wastes of time and waste yours in the process.

  36. Maurice says:

    Depends on the country.

    Most have some concept of comon carier status for things like phonecompanies other wise the phone compaines could be sued as acessories to crimes.

    Problem is if you moderate some comments you can lay your self open to legal attack.

  37. James says:

    There was a recent problem with famous Malaysian blogger Jeff Ooi here. A comment which jokingly made a reference to ‘shooting’ someone led to a police report, and the end result is that the settlement resulted in him having to place a large notice in his comments section telling commenters to be careful of what they write.

  38. Thor Schrock says:

    As a principal in this case I can tell you that the plantiff’s actions are not merely the result of a single comment. The PLantiff is claiming that the alleged comment that was posted under my name on Shoemoney’s blog was a violation of a settlement we had agreed to in a previous lawsuit where we sued the plantiff for a non-related offense.

    That case was settled, and I believe that this new legal action is all about trying to find out who was slamming the plantiff on websites and bloggs all across the Internet.

    We have not heard anything on this case since February, and I maintain that undesireable comments about a person or company that can be proven as truthful (which is the highest standard in a libel case) can not be libelous. They are protected First Ammendment Speech.

    The plantiff in this case is a decent company who services its customers well. I think this is just a case of a single bruised ego.

    I should submit this whole thing to A Chilling Effect and see what happens there with it. Or I could just file for a dismissial since this case seems to be dead in the water after Shoemoney’s deposition anyway.

  39. HaveBeenSlandered says:

    I am interested in everyone’s opinion’s here. I have recently had a bad experience in a share house where we were very poorly suited to live together and I moved out. A few days later one of the housemates posted a blog about me and how awful I was to live with and in general. These comments come up with a simple google search as I have a very unique name. Obviously I do not want this and have asked for it to be removed, but to no avail. What are my options??

  40. ekompute says:

    The internet really do need a policing system. Apart from libels and slanders, there are also too many scams, and dishonest advertising, with many advertisers making empty promises which they never do intend to honour. Purchasers are at their mercy because they don’t know what they are buying until after they pay for the products. And those money-back guarantees are more often than not just a ploy. How many people actually get their money back?

  41. Owner of Ruined Business says:

    I am the former owner of a business that was ruined by a blog site that was set up by the person who sold me a business that had multiple disclosure issues (#1 being that he FORGOT to tell us that he was locked in a legal battle with the city that was trying to shut the operation down because of its location in a residentially zoned community). This person set up a blog site that gave misleading information about my operation, personal information about my family, my small children, made statements indicating that I kept “large amounts of cash” in my home….gave out my home address, etc.etc. To this posting, multiple people who were affected by the closure of the business began posting comment after comment…before I knew it there were over 300+ postings from people who were believing what was being posted. The snowball effect, caused another business I owned to subsequently close. Anyone who types in my name, my business names, etc. would stumble upon this blog site. I have lost over a Million dollars in revenue…. I am struggling to keep another business in the same line of work alive. What can I do to stop it? How can I do some reverse damage control? Am I able to sue the creator of the blog site? Can someone give me some info????

  42. Betrayed byCEO says:

    The CEO of a public company where I work used my computer to leave a comment on the message board for a financial website. There were two comments left, both in the latter part of 2006. In April a comment was added by the CEO (my boss) and she signed my full name to it – first and last name as if I had written the comment. Do I have any recourse? The next day another employee allegedly left another message using HIS full name. I am suspecting that the CEO wrote a comment for him, as she did for me. Any suggestions what I can do?

Trackbacks

  1. [...] Bei der Prozessgeilheit der Nordamerikaner war es nur eine Frage der Zeit, bis so etwas passiert. Darren Rose nimmt den Faden auf (er wurde früher auch von Shoemoney angegriffen) und fragt in seinem Blog, wie die (internationale) Rechtslage ist und ob seine Leser vergleichbare Fälle kennen. Diese antworten prompt und berichten über Fälle in Italien, Brasilien und Malaysia. Ich teile die Meinung von Markus, dass rechtlich keine Unterschiede zwischen Blogs und klassischen öffentlichen Medien bestehen sollten, dass jeder für gemachte Aussagen geradestehen soll. Als Blog-Betreiber fühle ich mich verantwortlich dafür, dass in meinem Blog nix Illegales drin ist, auch in den Kommentaren. Darren berichtet von einem Kommentar, den er kürzlich gelöscht hat, weil ein Kommentator einen anderen beschuldigt hatte, pädophil zu sein. Dies würde ich genau gleich handhaben, persönliche Beschuldigungen und Diffamierungen gehören ebensowenig in mein Blog wie Berichte über illegale Aktivitäten. Doch ich finde ich es ist ein Armutszeugnis für die Blogosphäre, wenn solche Kontroversen nicht im vielgerühmten Dialog gelöst werden können und deshalb ein Gerichtsprozess daraus entsteht! [...]

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