Posted by Chris MacNaughton on Wed, Mar 03, 2010
Anyone who runs a blog is likely aware of the user comments feature. When enabled, other users can comment on your blog posts. Allowing other users to comment on your blog has its pros and cons. For example, a blog post with lots of user comments and interaction is engaging and interactive. On the other hand, comment spam is problematic. Plus, what if a user says something controversial - or worse libelous? Who's responsible for libelous user comments on blogs and Web sites?
The obvious and common sense answer is "when in doubt, cut it out." However, if your blog's user comment settings are not moderated, or even if they are, you may not have noticed a libelous comment. Because the comment is posted on your blog, are you accountable?
In general, the federal Communications Decency Act protects sites and blogs from being held responsible for libelous comments by users. This act prohibits a "provider or user of an interactive computer service" from responsibility "as the publisher or speaker of any information provided by another information content provider."
Recently, a car dealer took on ConsumerAffairs.com, alleging that libelous comments appeared on the ConsumerAffairs.com Web site (Nemet Chevrolet v. ConsumerAffairs.com), arguing that ConsumerAffairs.com was the information content provider and therefore liable for the libelous comments. Nemet Chevrolet alleged that ConsumerAffairs.com solicited complaints, steered the complaints in such a manner as to attract attention from class action lawyers, contacted consumers to ask questions and help draft or revise the complaints, and suggested that financial recovery options were available via class action lawsuits.
Because of these allegations, the plaintiff argued that ConsumerAffairs.com was involved in developing the substance and content of the user comments. In short, the plaintiff argued that ConsumerAffairs.com was "responsible, in whole or in part, for the creation or development" of the user comments and was therefore a non-immune information content provider.
The plaintiff also alleged that eight of the 20 defamatory posts were fabricated by ConsumerAffairs.com because it could not identify the customers making the posts based on the information provided such as first name, date, or model of car.
The case was originally dismissed by a federal court in June 2008. On December 29, 2009, the 4th US Circuit Court of Appeals upheld the US District Court's earlier decision. In its Opinion, No. 08-2097, the appellate court said that, "Nemet fails to make any cognizable argument as to how a website operator who contacts a potential user with questions thus "develops" or "creates" the website content."
What about those eight fabricated posts? The opinion of the appellate court is that "This is pure speculation and a conclusory allegation of an element of the immunity claim. . . Nemet has not pled that Consumeraffairs.com created the allegedly defamatory eight posts based on any tangible fact, but solely because it (Nemet) can't find a similar name or vehicle of the time period in Nemet's business records." The opinion goes on to say that the posts could have been made anonymously, falsified by the consumer, or overlooked by Nemet.
If you run a law blog, do you allow comments? Do you monitor comments before allowing them to be posted? What are your thoughts on libelous blog posts?