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Are You Liable for Libel on
Your Website?
By: Adam Shapiro, Esquire
Many businesses have recently embraced the
marketing potential of blogs and website discussion
forums. But by giving your customers and prospects
this new ability to leave feedback on your site,
are you liable for what they say?
According to a recent federal court case, the
answer in most cases is no. Until recently, the
owner of a website or blog was considered a publisher,
just like Newsweek™ or The Wall Street Journal™.
If others posted comments on your site, you could
be liable for what they said, just the same as
if a newspaper published defamatory comments in
an op-ed section. Website owners and bloggers
who tried to be proactive by editing or deleting
other people’s offensive comments could
be charged with having editorial control, and
therefore being liable for anything they missed.
This lead to the absurd situation in which web hosts
(this was mostly in the pre-blog days) were afraid
to remove offensive material from their own sites,
least they are considered to exercise editorial
control and become liable for the rants and raves
of others.
Section 230 of the Communications Decency Act
of 1996 (one of the few sections of that law not
to have been struck down by the courts) was designed
to correct the absurdity of the situation in which
a web host could not edit comments on their own
site. The section provides a safe harbor for web host
who edit some posts on their websites, but realize
that without a full time staff monitoring the
site, they may miss others. By recognizing the
speed at which comments and posting on the internet
work, Congress created the ability for web host
(and later bloggers to come) to self regulate
their own sites without the fear that doing so
might create liability.
In a candidly worded May 26, 2006 opinion, Judge
Dalzell held in Dimeo v. Max that despite
admitting to exercising editorial control over
his website, Mr. Max was not liable for the comments
other posters left on his message boards. While
noting that Mr. Max’s website “could
be a poster child for the vulgarity” the
court had in mind when it upheld §230, by
protecting the rights of posters to engage in
the brutish conversation, the court upheld the
ability of all business to remain free from liability
for such comments left on their websites.
Of course, what is left unprotected is any material
you actively post on your own site. Articles and
comments you make, or have others make on your
behalf, remain subject to defamation suits. In
this way, the web remains more like a live conversation,
where you’re only responsible for your own
actions, and less like an edited publication.
- Published November, 2006
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