Ask a Lawyer: Legal Liability for Blog Comments

Kraig Baker, MCDM faculty and partner at Davis Wright Tremaine

This is the first legal advice post on Flip The Media authored by our own in-house lawyer extraordinaire, Kraig Baker. In addition to being an original professor for the MCDM program, Baker is a partner at Davis Wright Tremaine, where he serves as the chair of the firm’s Technology, eBusiness, and Digital Media department. His clients range from large to small companies and include Microsoft, Nintendo, The Seattle Times, T-Mobile USA, E! Entertainment, TMZ.com, Getty Images, and Martha Stewart Living Omnimedia.

Question: Am I responsible for the comments on my blog? If someone leaves an illegal or flagrant comment on a hyper local blog that I’m a part of and we opt not to take it down for the sake of free speech, can that come back to bite us in the butt?

Answer:  In general, a blogger is not responsible for the comments that unaffiliated third parties post to his or her blog.  A statute, 47 U.S.C. 230 – often referred to as “Section 230” — immunizes a website, ISP, platform and other service providers from liability for the acts of third parties on the person or entity’s website. Put another way, this statute ensures that a blogger won’t have defamation, privacy, or negligence liability for comments made by a visitor to the website. This immunity applies whether or not the blogger knows about the comment or not. A blogger should be careful if he or she plans to edit the comment, but the blogger will not lose this immunity even if he or she edits the content, whether for accuracy or civility, so long as the edits do not materially alter the meaning of the original content. A blogger also will not lose his or her immunity if the blogger chooses to filter or take down the content.

Of course there are a couple of exceptions. First, if the commenter is an employee of the blogger (an employee, not a subcontractor), the blogger could have liability. Second, if the comment constitutes (or in some cases induces) a crime, the immunity likely won’t apply. Third, if the comment includes content that might infringe a copyright or a trademark, this immunity won’t apply (but the Digital Millennium Copyright Act might).

A blogger should also check the terms and conditions of the blog. If the terms and conditions make promises to users about when and how comments will be filtered or taken down and the blogger doesn’t follow those promises, this could create contractual liability for the blogger. This is why it’s always important to ensure that the rules or terms that a blogger places on commenters are as flexible as possible.

For more information about this topic, try the Citizen Media Law Project at http://www.citmedialaw.org/

Do you have any burning questions related to law and technology, digital media, or a related area? Leave it in the comments and we’ll use it in future posts.

Tags: blogging, comments, defamation, liability, privacy, Section 230

This post is categorized in: Law