Blogging Liabilities

One of the issues currently orbiting the blogosphere is the extent of legal liability for material published in a blog. While it's easy to understand concepts such as libel—some blogger writing about your ties to a terrorist organization, for example—and the lawsuits that result from such written defamation, other topics aren't as clear. Say someone adds a comment to your blog that libels someone else, or is otherwise troublesome in a legal sense. Are you liable for what someone else has written, or has perhaps even obtained from yet another party?

The blog model is relatively new and precedent is limited for that reason, so the courts are still sorting out bloggers' relative level of liability for material published on their sites. Questions having to do with electronic versus printed material have been answered to some extent; the Web, and the Internet in general, have been around long enough at this point to serve as a test bed for cases that involve electronic publishing. Since blogs are simply an extension of that technology, it seems most legal definitions that apply to the Web would be appropriate in the blogging context as well. This logic appears to be supported in the Electronic Frontier Foundation's Bloggers' FAQ on Section 230 Protections. Section 230 of Title 47 of the United States Code was passed as part of the Communication Decency Act of 1996; it's a law that protects Web hosts from legal trouble when material from someone else appears on your site, or in this case, your blog.

Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This federal law preempts any state laws to the contrary: "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The courts have repeatedly rejected attempts to limit the reach of Section 230 to "traditional" Internet service providers, instead treating many diverse entities as "interactive computer service providers."

That's nice, you may say, but what does any of this have to do with my blog? Quite a bit, actually. As it turns out, the simple act of blogging throws you into that user category, but if others leave comments on your blog or you otherwise make use of material provided by someone else, you're a provider as well. In other words, you become the legal equivalent of a Web host.

Bloggers can be both a provider and a user of interactive computer services. Bloggers are users when they create and edit blogs through a service provider, and they are providers to the extent that they allow third parties to add comments or other material to their blogs.

The key phrase is third parties. As long as the material in question doesn't originate from you, and assuming you don't alter it, you can't be expected to accept responsibility for it. But—and this is a very significant but—if you're actively engaged in locating and publishing the material yourself, the whole thing suddenly becomes a question mark.

Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However, if you selected the third-party information yourself, no court has ruled whether this information would be considered "provided" to you.

So if you are actively going out and gathering data on your own, then republishing it on your blog, we cannot guarantee that Section 230 would shield you from liability. But we believe that Section 230 should cover information a blogger has selected from other blogs or elsewhere on the Internet, since the originator provided the information for publication to the world. However, no court has ruled on this.

The act of editing is the second question mark, but more in the context of absence of court ruling than common sense. This one revolves around changing the meaning of the original material, which strikes me as having the same effect as writing it yourself in the first place.

Courts have held that Section 230 prevents you from being held liable even if you exercise the usual prerogative of publishers to edit the material you publish. You may also delete entire posts. However, you may still be held responsible for information you provide in commentary or through editing.

The courts have not clarified the line between acceptable editing and the point at which you become the "information content provider." To the extent that your edits or comment change the meaning of the information, and the new meaning is defamatory, you may lose the protection of Section 230.

It isn't difficult to see the problem where defamation is involved; that's always going to get you in trouble, blog or no blog. But it seems there remain a few grey areas when it comes to volition and intent forming the boundary of culpability. Copyright issues aside, it isn't yet clear what effect simply quoting—or even editing—material from a third party may have in every conceivable situation.


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