Is It Defamation If A Commenter Libels The Owner Of A Blog In That Blog's Comments?

from the legal-questions dept

Thu, Feb 5th 2009 4:46am — Mike Masnick

Well, here's an interesting legal question brought about by modern technology. If a commenter on a blog "defames" the owner of that blog, and the blogger does not delete those comments, is it still defamation? According to a court in the UK, the answer is no. The court found that, since the blogger had the ability to moderate comments, leaving them up was a de facto consent to having the comments published. This is fascinating, as defamation law was originally targeted at publishers who used their publications to spread false claims about someone. Yet, today, with the internet and comment systems, the tables are turned somewhat.

On the whole, I tend to agree with the ruling -- though, these days I'm fairly skeptical of most defamation suits. It's difficult to see how the guy suffered any "harm" since he left the supposedly damaging comments up when he had every means to delete them. Of course, you could flip that around -- and note that, in deleting those comments, you might only draw more attention to them (hello, Streisand Effect!), and so perhaps you could argue that leaving the comments as they are, and responding to them rather than deleting them, was your way of minimizing the "damage." Either way, it's yet another example of how modern technology sometimes doesn't mesh well with existing laws.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: blogs, comments, defamation

15 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Jeffry Houser (profile), 5 Feb 2009 @ 5:31am

If he deletes comments...
If the blog owner deletes the comments, they would no longer be protected as a service provider under Section 420 (?) of the CDA, right? ( At least in the US )

That could be a valid argument for leaving them up, even if they are truly libelous.

It could also be used as proof that our legal system is mind numbingly complex.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 5:39am

given how many people say stupid things on the internet and how people just make up stuff all the time... and this is some anonymous voice from the void attacking you... How insecure do you have to be...
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 5:47am

Common sense says that if you have a blog and you allow people to post comments, then you are opening yourself up for criticism. Of course, common sense and the law have absolutely nothing to do with each other.
[ link to this | view in thread ]
*POST DELETED*, 5 Feb 2009 @ 5:54am

*POST DELETED*
[ link to this | view in thread ]
Dave, 5 Feb 2009 @ 7:20am

If you don't want people to knpow about them
Deleting the comments may call attention but suing definitely will.

I vote for just growing a thinker skin.
[ link to this | view in thread ]
smg, 5 Feb 2009 @ 7:41am

if you want a court case, take a screen shot, get some sort of digital copy, then delete the post. its not that hard.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 7:44am

I just don't buy into the entire concept of "defamation" without proof that the information presented is entirely false, designed to defame the target person, and that is in no way opinion based. It seems like we have gone far beyond those simple limitations and started labeling anything negative about someone as defamation. If I point out something about you that is negative, but it is accurate, then you can be offended/angry, but you should not have legal recourse. That's not to say the person in question should just accept it, but they should not attempt to silence their opponent via the legal system.

The best way to defuse these is neither litigation nor deletion. Simply post a follow up comment that shuts down the persons rant. It's really hard for someone to gain credibility when they appear to be a raving lunatic and you respond in a controlled and civilized manner, directly refuting the base of their rant.
[ link to this | view in thread ]
W. Babie, 5 Feb 2009 @ 7:51am

We're all a bunch...
We have evolved into a bunch of whiny little babies.

"Wah! So and so called me a name! Wah! Wah! Sue! Sue!"

Common sense and civility have long since fell to the wayside and personally, I'd like to see dueling re-instated.

"Sir, you have soiled my honor! I demand satisfaction! I will see you at dawn!"
[ link to this | view in thread ]
Jesse, 5 Feb 2009 @ 8:32am

I think if some guy leaves something piss stupid (not just an opposing opinion) nobody will be that upset if the blogger deleted it. I like how you handle it though Mike; it is nice seeing you show up in the comments every now and then, to refute somebody who disagrees with you.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 8:48am

Re: We're all a bunch...
I like that idea for several reasons one being it will limit the amount of lawyers that can serve in Kentucky. (When sworn in KY you are asked if you have ever been in a duel.)
[ link to this | view in thread ]
nasch, 5 Feb 2009 @ 8:53am

Re: If he deletes comments...
I doubt it.
'In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:
1. The defendant must be a "provider or user" of an "interactive computer service."
2. The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.
3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.'
'Plaintiffs have successfully argued in a handful of cases that an "interactive computer service" was not entitled to Section 230 immunity because the person or entity in question was an "information content provider" with respect to the information at issue.'

No mention of the defendant not deleting materials. But if you can find something that says otherwise I'd be interested.
CDA Section 230
[ link to this | view in thread ]
Hulser, 5 Feb 2009 @ 9:14am

Re:
I think if some guy leaves something piss stupid (not just an opposing opinion) nobody will be that upset if the blogger deleted it

I would be and I think that most other people would be upset. And if they're not upset that bloggers censor their comments, they should be. You really think that censorship, even of stupidity, is the right approach?

You said it yourself, Mike will respond to comments on occasion. This is the right approach, not censorship.
[ link to this | view in thread ]
le sigh, 5 Feb 2009 @ 9:40am

le sigh :(
I thought this would be a position you support but again you just complain/whine. I am saddened. Your thoughts on the economics of non-scarce resources was interesting, but I've yet to read anything positive or interesting from you lately.

And likewise as jesse implied/said, a hate filled comment that adds nothing to an argument or debate will be dismissed even before/if it is deleted, censored, edited, etc.

Pfft. Lost subcriber.
[ link to this | view in thread ]
Hulser, 5 Feb 2009 @ 9:56am

Re: le sigh :(
Since you seem to have such a fundamental misunderstanding of the nature of the posts on TechDirt, it's probably a good idea that you don't read them any more.

I thought this would be a position you support but again you just complain/whine.

First off, why would you think that Mike would support a person suing a blogger for defamation? Not only did Mike put scare quotes around the word defame in this post, but based on previous posts, he seems to be quite skeptical of defamation lawsuits.

Secondly, if you interpret his post as complaining and whining, you're just flat out confused. The post was about a fascinating legal issue brought about by technology. Believe it or not, you can discuss an issue, even a contentious one, without it being complaining or whining.
[ link to this | view in thread ]
Igor, 5 Feb 2009 @ 11:14am

The ruling is most reasonble
Yes, "defamation law was originally targeted at publishers who used their publications to spread false claims about someone."

The "publisher" in this case is the blog owner. The commenter has merely sent "a letter to the Editor". The "blog owner" chose to publish this "letter to the Editor" in his own publication.

If the blob owner really wants to sue someone what this, he should sue the publisher (himself). :)
[ link to this | view in thread ]