Today I learnt that bloggers need to be very careful about how they manage comments / discussion on their websites. There was a case 10 years ago that changed how people manage online communities, at least, changed how some people manage them. Amongst new bloggers this case is forgotten it seems. The case was the Godfrey v Demon case, and involved libellous comments left on a forum. After reading about this case I have made the following changes to the site:
- Disabled commenting on some blogs that sometimes attract angry and vocal people
- Deleted any comments that mention other people where they are not relevant to the discussion
- Changed the commenting software so that all comments are moderated before publishing
- Added a commenting disclaimer
Until now I had never considered that people leaving comments could cause any problems. I had them auto-moderated so that any profanities would be blocked, and also if people left multiple links these would also be blocked, as these are generally considered spam. But good language and one or two on topic links are generally considered to be acceptable – at least they were.
Since reading the Wikipedia page on the Godrey v’s Demon case it is a real shock that blog comments can cause such problems. In fact, these comments were in relation to comments left on a Usenet page – blogs were still in their infancy in 2000.
Godfrey v Demon Internet
From Wikipedia: http://en.wikipedia.org/wiki/Godfrey_v_Demon_Internet_Service
“Laurence Godfrey, a physics lecturer, learned that someone had posted a message to the Usenet discussion group soc.culture.thai. That message, sent by an unknown source, had been forged to appear to have been sent by Dr. Godfrey. On January 17, 1997, Godfrey contacted Demon Internet, one of the major Internet Service Providers in Great Britain to inform them of the forged message and ask that it be deleted from Demon Internet’s Usenet news server. Demon Internet declined to remove the message, which remained on its servers for ten additional days, at which time it was automatically deleted along with all other old messages. Godfrey sued for libel, citing Demon’s failure to remove the forged message at the time of his initial complaint.”
The case against Demon was that they failed to remove the comments, and the comments remained for 10 days from the date that they were asked to remove them.
So this is a warning to anyone running a blog or a forum – moderate comments, ensure that nothing can be posted that could lead to a legal threat. Many people are advised to have a blog as part of their social media marketing set and to help boost SEO. But few are aware that if a member of the public leaves a comment about another person or business it cause some serious problems.
I know that the Internet is full of such comments these days, but it is important that bloggers understand some law regarding defamation at least.
Basic rules:
- Only write the facts in your blogs (I have always followed this rule)
- Moderate all comments before publishing – do not leave to auto publish
- If in doubt, leave it out! i.e. if you are not sure if something should be said, do not publish it
- People say things when angry that they do not mean, but this does not change the law. Do not publish threats or defamatory remarks.
This sort of changes everything, at least, it means that from now on conversion will not flow on this blog, as each comment will be held in a moderation queue until it is reviewed and deemed acceptable for publication.
There is still some debate, the sort that is always decided in court, over who is responsble for a comment.
In the Godfrey versus Demon the ISP (web host) was held responsible. However, there have also been cases, such as with a comment left on Fool.co.uk in 2005, where the actual commenter was held responsible. The web host was asked to trace the IP address, and this led to a prosecution.
The Fool.co.uk Case of Terry Smith v’s Jeremy Benjamin
“A fund manager, Terry Smith, chief executive of city firm Collins Stewart Tullett, won undisclosed damages from Jeremy Benjamin, another fund manager after Benjamin had posted what he now accepts as false allegations on the Motley Fool forum, www.fool.co.uk under a pseudonym. The Motley Fool who were forced to give over Benjamin’s details by a court order, had already taken down Benjamin’s post once Mr. Smith contacted them. However, the damage had already been done.” Source: www.connectedinternet.co.uk/2005/03/25/online-libel-how-to-avoid
Everton Blair from Connected Internet goes on to say:
“Site owners do not have to police their comments, but if someone posts something that is potentially libellous, you are obliged to take it down if someone tells you that they think it is libellous.”
Personally I feel that it is wise to actually “police comments”. If someone spots something that they think is libellous on your blog, then there may be a time lapse between the request to remove and the comment actually being removed. Some ISP’s may remove the comment for you, others may take down the whole site, some may send a message to you directly. If you are on holiday or fail to see the message, this could lead to problems.
It seems that the general rule is that if you act quickly you should be OK. Although as I said a moment ago, better to moderate than wait until someone complains. Unless you sit and read each comment that the community leaves you could be leaving yourself, or you webhost, open of libel action.
A New Disclaimer on Blog Comments
I spoke to Business Link today who have advised that we should have disclaimers on sites where user content can be added (i.e. forum posts, blogs). So I have today added on the comment form:
“Please read the comments disclaimer before posting a comment. Remember that you are responsible for any comments that you make regarding people or businesses.
Webologist is not responsible for the content in comments other than those made by Webologist, or in blogs or other online content that may be linked to.”
I need to roll this out to all websites that allow comments.
Just came across this post on WordPress by Lorelle: http://lorelle.wordpress.com/2010/09/04/get-angry-blogger-sued-for-comments-on-their-blog/
“In general, the “owner” of the comment is the responsible part for their actions. Unfortunately, there are legal decisions that state that if you moderate and edit your comment queue, you are responsible, thus attackable, for any comments that appear on your blog. ”
This suggests that you should be OK if your comments are automatically published – but then each complaint is unique. Ideally there should be some sort of official ruling, for now, comments are best left fully moderated.
So this is also a warning to Commenters – according to Lorelle’s blog, commenters can be held responsible for their comments.
Of course, some commenters do not leave their real email address or even their real name. Which means for a blogger, you have to be even more strict – do not publish if in even the slightest doubt. If there is a complain the courts can insist that the webhost provides the IP address and email, which can often be used to trace the commenter.
A comment by Vicki posted on August 27, 2005 at 8:24 pm on http://www.blogherald.com/2005/08/27/blogger-sued-over-comments-left-on-blog/?isalt=0 quotes (the source of her quote returns a 404 page now):
This is an interesting twist. However, certainly best to err on the side of caution and just not publish anything that could be libellous in the first place.
Yeh Good points.
I run another online forum 50,000members + Posts and over 3 million posts, unfortunately its very hard to moderate posts on that forum since there are soo many and it kinda kills out discussions. I guess that it maybe different to posting on a Blog then a forum – whereby a blog is centrally controlled (Content wise) by one or 2 people whereby forums everyone gets involved! Suffice to say had no problems with anyone despite anything and everything goes on in our forum!
If you run the forum, i.e. if it is hosted within your web host account and you are an administrator, then you could be held liable. It seems that if someone sees a potentially libellous comment they will approach the webhost first. The webhost should contact you (although it is possible some of the very large companies that host many thousands of small sites may act without consulting you). Each case is probably different, depending on the financial situation of each party. A webhost will have insurance, an individual such as yourself may have no funds at all. If some recognises a commenter, or suspects that they are someone else (such as the Fool.co.uk case) then taking action on the commenter may be the best option (with fool.co.uk it was an investment fund managers, they generally are quite wealthy).
As there are no set rules in place (Jack Straw was trying to implement something recently) it means that each case could potentially go to court and then its a legal bun fight.
For a forum, it is tricky. I suggest that you take out insurance that includes liability insurance / cover for slander and libel. With 50,000 members, who knows what they are talking about? They could watch a reality TV show and then start slagging someone off on a public forum and you may not know until a letter arrives from your web host, or worse, direct to you.
The more I search Google, the more it seems that this is a massive and cloudy area indeed.
Another consideration is generally when a libel case is proved, the damages are related to the number of people that may have looked at the content online. There is no fair way to determine this though. For example, this blog does not get many readers so any comment is only seen by a handful of people. But, even then, if a page is viewed 100 times, there is no way to know if each of those 100 read all the comments (most poeple skim read the blog, read a few comments then jump to the end).
For a forum with 50,000 users, it could be argued that any comment is viewed much more. And what if you have an email alert set up on your forum? Some forums I use send a mail when someone replies, this could raise comment views even more.
It is a minefield that needs regulation. But everyone is talking about freedom of speech, freedom to express a point of view etc.
Here is the article in The Times: Jack Straw to probe internet libel law.
Obviously downloaded means viewed, so this suggests that a court would consider the number of times a comment was downloaded, even if that comment is one of 1000 on a page. No proof currently required that people have read the comment.
It seems that printed stories have a 1 year time limit for someone to make a libel action, whereas on the Internet that is no set time limit.
Regarding the whole consultation:
In March 2010 Jack Straw announced some changes, that were due to come into effect after the elections (I will need to find out if that is the case). But, according to writethinking.co.uk there were a few important omissions from the announcement:
In fact, that article links to this website: http://www.libelreform.org/ which is dedicated to the whole subject.
For now, it is still best to be careful. Have an insurance policy that covers libel and a solid disclaimer on your forum/blog that reminds users that they may be held liable for their words.
A possible chain of events could be:
Claimant sues your web host.
Your web host counter sues you.
You sue the commenter.
Obviously without insurance that covers libel expenses things will go bad for you if your web host counter sues.
And this is some personal advice that I received from a barrister friend;
Hi. Can we no longer see the action plan that was posted to help us resolve this dispute with orange?
The blogs are offline at the moment. I shall put up a new page that only provides the action plan with respect to Orange.
I have posted the action plan, see link at top of this page.
Thought I’d clarify a few issues as there is so much inaccurate stuff out there about libel.
Generally, it’s considered that people who run unmoderated forums will *not* be liable if they, as in the Godfrey case, take down any libellous comments as soon as they are notified of such.
Although that sounds simple it raises a number of issues. And none of them are easy for the amateur (non legally trained) to deal with. As some have said, one is the ‘chilling effect’ on freedom of speech. In comenting on issues one has the defence of ‘honest comment’ (which used to be called fair comment, a misnomer as it did not have to be fair!)
Simplistically, one can make/publish any comment as long as it’s not provoked by malice and it’s based on a fact which is indicated in the comment. So, for eg: “Fred’s website is rubbish because it’s hard to navigate and ugly” would be legally fine. The fact is that the author visited the website. His opinion is that it was hard to navigate and ugly. But the post “Fred must have been drunk when he put that page up” is likely to be libellous. Whether or not Fred was drunk is a matter of fact not opinion, so wouldn’t be protected.
Another significant factor is that of reasonableness. Any blogger is expected to behave reasonably. That might well include, for eg, blocking the IP address of someone known to leave libellous comments; closing down a debate where libellous comments are being posted and monitoring debates at reasonable intervals for such comments. Any admin who didn’t could be argued to be behaving negligently – which would also invalidate any libel insurance which was in place
Sounds like good advice Ali, am thinking of returning this blog back to unmoderated after the first approved message.
interesting area. where would an estate agent stand if he wrote on his website that Mr XYZ of ABC Road, 123 Town rented a property but did not pay any rent? It is true yes, that’s what estate agent believes, and can prove. Would he be sued for libel? Would owner of site be sued if he had forum/blog dedicated to non-payers of rent?
Really is impossible to say, all depends on the courts decision, case by case. Although the burden of truth is on the person making the comment. The estate agent should have proof of lack of payment, so at least if it came to that there would essentially be no case to stand for. But there would still be a cost incurred, insurance policy may cover it of course.
thanks for reply. i am looking into insurance policies but am having trouble finding them. what companies do this type of insurance and what is the special name. any links would be appreciated.
You need to look for Professional Indemnity Insurance. Basically it will cover your business for financial damage done to other parties as a result of your business. Some insurance policies use different rules. I went for Hiscox as they seemed to provide the best cover. Here is a link to the info that I originally found: Hiscox Professional Indemnity Insurance
Since writing this I have had more conversations with people that have been involved on the Internet for a long time. Many do allow auto publishing of comments, as this is then treated in the same way as forums. You need to place a notice on the site along the lines of “the comments published here are the opinion on the commenter and not ours. If you have seen something on this site that you feel infringes on your rights or is defamatory, please contact our administrators who will take action”. Or something like that.
thanks for the replies. another questions if you would be so kind. The hiscox policy looks good for what i need. As person with several sites would the Professional Indemnity Insurance be specific to a site or linked to me as a person.
I should cover your business, so any sites that you manage should be covered. Best confirm with them though.
That is very scholastic read
Are you sure? What would Snow Joe do in a similar situation?