I wrote last month about the settlement of the libel case brought by the childcare writer Gina Ford against the Mumsnet website. In my view, there are disturbing implications for free speech if the publisher of a bulletin board is liable for the content of user comments that it cannot check.
While I count myself a near absolutist on free speech, I don't complain about the existence of laws against defamation or the applicability of those laws to the Internet. I say this too with personal experience of those laws, having successfully defended myself last year against one attempted libel writ. (I concede that it was not a daunting experience, and it is related in the earlier post I have linked to. Apart from being worthless, the purported claim, by the blogger Neil Clark, had the additional drawback that it was issued with such ineptitude that it was struck out by the presiding judge without even reaching court.)
I'm not worried either about the regulation of user comments posted on a web site, which I don't regard as a free speech issue at all: your freedom of speech is not abridged if you are prevented from leaving comments on a blog, any more than it is if the manuscript of your book is rejected by a publisher. But I am concerned about a situation where the proprietor of a website is held liable for comments posted by readers of that site, even where the proprietor acts on a complaint (i.e. takes down an offending comment). I am not a lawyer, but from the standpoint strictly of public policy the law of libel as it stands is a mess when applied to new media.
Let me therefore draw your attention to two things I've read since the Mumsnet case that are relevant. The first is a piece from The Times by two lawyers who detect "a herd of libel actions fast approaching" the world of blogs and message boards. They point out:
Generally, journalists and authors take a great deal of care in the articles they prepare for newspapers or news websites. Their work is checked over by an editorial team, and then, if there are any legal doubts, run past an inhouse media lawyer before publication. In contrast, bloggers typically work alone, writing as fast as they think. A posting is seldom checked before it goes online. Yet bloggers are subject to the same English libel laws: the burden of proof, if a claim is brought, is on the blogger to prove what he has written is true. If he can't justify his allegations, he could be in trouble.
This will happen, and bloggers will need to get used to it (which is why I mention the report). But the remedy here is in the hands of the individual blogger. What is much more difficult is the case of the blog or message board proprietor, such as Mumsnet, who is not responsible for the comments left on a site. And in this case I'll draw your attention to a possible recourse that some readers may be aware of but that is new to me.
A company called coComment - with which I have no connection, and of which I had never heard till a week or so ago - has contacted me regarding the Mumsnet case. The company's marketing prose is, ahem, not felicitous ("coComment's service provides an integrated solution enabling users to freely comment") but the principle strikes me as interesting, so I pass it on. The idea is that bloggers or proprietors of message boards need not post reader comments on their own sites, but can have coComment publish them instead. As I understand it, there would be a link on the blog or message board to where the comments could be posted and read. The relevant legislation is Section 230 of the 1996 Communications Decency Act (in the US), under which: "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."
That legislation raises other issues of principle, and I'm wary of some of its consequences. But if you run a web site, invite user comments, yet are concerned about liability, you may want to look into this.