Out-Law / Your Daily Need-To-Know

Webmaster not liable for editing and posting remarks

Out-Law News | 02 Feb 2005 | 12:00 am | 2 min. read

The operator of a web site is not liable for allegedly defamatory remarks posted to the site's forum by anonymous third parties, despite some editing of remarks, according to a ruling issued by a New Jersey appeals court on Monday.

The court found that Stephen Moldow, who operated community web site "Eye on Emerson", was immune from liability under a provision in the Communications Decency Act which grants immunity from suit to those who provide material on the internet that was written by others.

Section 230 of the Act 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 general grant of immunity is then supplemented by a so-called "good Samaritan" provision that no provider or user of an interactive computer service shall be held liable on account of "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

Moldow set up his site in late 1999, providing details of local government activity in the Emerson area. He was sued in August 2001 by town council members Vincent Donato and Gina Calogero after derogatory messages were posted anonymously onto the site's discussion board.

Donato and Calogero argued in court that Moldow was liable because he had actively participated in the selective editing, deletion and re-writing of some of the messages, according to court papers. But the Appellate Division of New Jersey Superior Court, in a ruling published on Monday, disagreed.

"In the context of traditional media, such as newspapers and magazines, the publisher of defamatory statements might well be exposed to liability for conduct such as that alleged against Moldow," said Judge Joseph Lisa delivering the ruling on behalf of the three-panel court. "In the context of cyberspace, however, Congress has chosen a different course."

He said that the legislation gave "a broad immunity to providers or users of interactive computer services".

As the provider of a web site, said the court, Moldow was both the user and the provider of an interactive computer service and the fact that "he allows users to post messages anonymously or that he knows the identity of users of the web site are simply not relevant to the terms of Congress' grant of immunity."

If any messages posted by Moldow personally were found to be actionable, then he would be liable for the content of them, said the Court. But no allegations had been made in connection with such messages.

And Moldow could not be responsible, even partly, for the creation or "development" of the third party messages.

"Development requires material substantive contribution to the information that is ultimately published," said the Court. "Deleting profanity, selectively deleting or allowing to remain certain postings, and commenting favorably or unfavorably on some postings, without changing the substance of the message authored by another, does not constitute 'development' within the meaning of" the Act.

According to reports, the web site is no longer operational and both council members have resigned.

It is very unlikely that a UK court would come to the same conclusion on the facts of this case. The relevant UK laws differ significantly: a webmaster escapes liability if he does not monitor the content that others are posting and has no knowledge of any defamatory remarks; but as soon as he exercises editorial control, he risks becoming liable for any defamation.

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