Dialogue or Diatribe?

By Al Tompkins
Broadcast/Online Group Leader

As newsrooms across the country grapple with online user comments, the discussion often turns to legal implications. I wanted to demystify the matter and sort through the rumor and rhetoric. So I went after some straight answers from people who actually know.

I consulted two media attorneys in a market I covered for years, Nashville, to learn more about what legal concerns journalism organizations should have when they allow members of the public to freely post comments on public Web sites. I interviewed (by e-mail) Alan E. Korpady, of King & Ballow, and Robb S. Harvey, of Waller, Lansden Dortch & Davis.

What are the legal issues that newsrooms should consider when opening their Web sites to public comment?

Harvey: Newsrooms not only as a matter of common sense but also for reasons of self-preservation must consider whether their Web sites are likely to attract comments that could pose liability risks. In recent years, numerous claims have been asserted regarding Web site postings, including defamation, invasion of privacy, misappropriation of likeness and right of publicity, infliction of emotional distress and negligence. Even if lawsuits by those being commented upon, posters or even other readers may ultimately be found wanting or even frivolous, those claims impose time demands, expense and substantial distraction. Newsrooms and their counsel must carefully consider immunity and safe harbor protections under statutes such as the federal Communications Decency Act and the Digital Millennium Copyright Act, as well as other recently enacted state statutes and common law.

Korpady lists the main legal concerns:

• Potential liability for direct, contributory or vicarious copyright infringement

• Potential liability for trademark infringement

• Potential liability for defamation by bloggers

• Application of the "journalist's privilege" to blogging

• Application of the "media exemption" from the definition of expenditure under the Federal Election Campaign Act

• Application of licensing laws to bloggers giving or disseminating what might be characterized as "professional" (e.g., legal or medical) advice
  

• Vicarious liability for the wrongful acts of a blogger as a "general partnership," especially if the blogger accepts advertising

Is there any truth to the commonly held belief among news executives that if they do not edit comments they are more protected from defamation and/or libel claims than if they edit feedback?

Harvey: There is some truth to this belief, but like most things, it cannot be assumed to be an absolute rule. Substantial case law has developed over the past several years recognizing "Section 230 immunity" under the federal Communications Decency Act. This immunity is broad, and has been applied to entities such as Internet service providers, Web site operators, computer equipment lessors, municipalities and forum board operators.

Korpady: Generally, it is likely that is true. The case law has not developed to the point where we can provide such advice with anything approaching real comfort. Section 230(c) of the federal Communications [Decency Act] provides broad protection to the "provider of an interactive computer service" for statements or information provided by "another information content provider." In the limited research I did to support this general response, however, I found no case that expressly extends that protection to newspapers. If, however, a newspaper is put on notice of defamatory speech, it is also protected by Section 230(c) if it restricts access to such speech. Some courts have held that even a distributor of information (no editing or selection of content), must act "reasonably" when put on notice of defamatory speech.

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.