IANAL but INAL – I am not a lawyer but I need one :)
More specifically I’d be *enormously* grateful if anyone out there could help to illuminate or guide my thinking on the legal position regarding the posting of copyright infringing, defamatory or libellous material on a community website. Both regarding one that’s based on comments (i.e. an individuals blog, or, for example The Guardian’s Comment is Free) and on blogs (i.e. edublogs, blogger or, for example Le Monde Blogs).
As far as I understand it the Digital Millennium Copyright Act is the best place to start for copyright concerns and as Australia and the US have a free trade agreement it’s likely to be a good standard for me to look at… essentially you won’t be held responsible for breaches of copyright by users if:
-You put up a notice on the site specifying where copyright complaints should go
-If a complaint is submitted you act straight away and if it holds up that material is removed straight away
-You put up, somewhere, a DMCA compliance page (like this one)
[Abridged from Derek Powazek’s Design for Community]
However, am not sure at all how this applies to libellous and/or defamatory content, as defined by the EFF. For example, if an edublogs.org or a Le Monde user was to post along these lines would the organisation / company / person providing that service be held responsible for that content or, as with the DCMA, are there ways in which sites can be compliant without requiring pre-moderation of all content?
Now, it’s pretty clear (in US law at least) that the republication of libellous content is not something that individuals or organisations can be held responsible for, this 2003 Wired article provides a pretty comprehensive overview:
The court based its decision on a section of the 1996 Communications Decency Act, or the CDA. That section states, “… no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
And to extend that this 2005 Wired article states that:
large commercial web publishers are generally protected from liability over third-party comments posted on their websites
And even further into the archives I also found Cubby v Compuserve from 1991 where the judge wrote:
CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so
Which, while compuserve is obviously an ISP (it’d be a bit like holding a telephone company responsible for libellous calls ;) does give some precedence for sites such as the ones I’ve mentioned to in effect gain more protection from libellous commentary if they actually step well back from editing / moderation.
But I’m yet to find any useful items in Australia…
Essentially my thoughts are that if the site:
-Makes fully clear that users are responsible for their own content
-Frames / positions the site in such a way that it is clearly understood to not be pre-moderated or even ‘post-screened’ content
-Has a clear notice on the site (or indeed on each piece of content) stating where complaints regarding libellous / defamatory content should go
-Immediately investigates and takes appropriate action in the case of a complaint
There should be no liability taken on by the provider of the service.
Obviously this is not a black and white area but I’d really really appreciate if people could share how right or how wrong you think I might be and why… and if you’ve got any lawyer friends (does anyone know Lessig :) if you wanted to ping them this post for their thoughts… well, you’d be a bit of a legend!
Update: From a colleague this is an *excellent* resource from The Fifth Estate on defamation.
Good questions James. While you’re digging it over, find out what is the story for when a posting is innocent enough, but some comments posted by readers are not.
My personal opinion in this case is the provider has about the same status as the paper manufacturer for words in books, but the editor ie the blog author is entirely in the firing line if they continue to leave the material on view.
My 2 cents worth. Give Irf at planetirf a nudge. He’s got the lawyer thing going on and he understands, first hand, blogging issues.
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