Comments: headache or more?
June 13, 2007 in Community, Legal Issues
My new boss at Eastern Illinois University, James Tidwell, sent this link to faculty a couple of weeks ago, and it’s something that comes up often on the CMA listserv, so I figured it was worth a few words.
Al Tompkins at Poynter does the heavy lifting and talks to a couple of legal eagles about the wisdom of user comments on news sites. Read here: Assessing Legal Risks and Guidelines for Online Sites. There’s some additional info in a sidebar about some major news org comment policies here: Dealing with comments, a few interesting approaches.
The key takeaway is that newspapers are not shielded from lawsuits through unmoderated comments (Oh, don’t we wish!) – anyone can file a lawsuit. But the law is developing in such a way that news organizations that don’t moderate comments prior to posting are in a better position to defend themselves against such frivilous lawsuits.
This fits with what I’ve always maintained – newspapers online are different than newspapers in print. The Communications Decency Act (at least the part that wasn’t overturned by the Supreme Court) shields online sites from liability for material in ways that are not the same as those afforded traditional publishers. And until Congress revisits that law – or a court significantly disagrees with it – this is a paradox newspaper online sites will have to live with.
And finally, there is this exchange:
If newsrooms do allow public comment, what would you recommend as rules of engagement for the public to follow?
Harvey: Although the following is not provided as legal advice — the reader should consult counsel of his/her choosing in this area — among the considerations to be taken into account [is] the need for the newsroom to impose robust “terms of service” on all posters. Posters should be informed that they are responsible for their own postings. The newsroom should consider advising readers that the newsroom does not control or monitor what third parties post, and that readers occasionally may find comments on the site to be offensive or possibly inaccurate. Readers should be informed that responsibility for the posting lies with the poster himself/herself and not with the newsroom or its affiliated sites.
Korpady: Adopt and include in the access agreement with bloggers a “notice and take down” policy reserving the right to refuse to post or to restrict access to defamatory or infringing speech.
Adopt and include in the access agreement with bloggers an agreement not to post defamatory, infringing or other harmful content.
And be aware that the blogging community is very jealous of its unfettered right to speak and has on a number of recent occasion “mobbed” an Internet service provider that took down clearly infringing content (e.g., Digg.com). You may be caught, without a remedy, between a defamed person and the defaming blogger or between the owner of a copyrighted work and the infringing blogger that posted it.
I’ve long been on record supporting Steve Yelvington’s take: Throw the bums out. Establish some community standards and make them readily apparent on your site. Allow people to report those who break the standards, and then ban those people from participating. I call it “passive moderation” – you allow everyone to play at first, but if someone decides to be an a-hole, then you pull their privileges.
It’s a lot easier than wholesale moderation, where your editors stand between comments and the web site at every turn. If you have a story that gets over 290 comments (look at the comments for this post about Dale Earnhardt Jr. joining Hendrick Motorsports to see an example), what are you going to do? Better to practice passive moderation than full-on moderation.
