Are websites legally responsible for user comments?

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Websites that allow comments have walked a fine line for years. Some sites actively moderate their comments, some only react to offensive ones and others let the trolls run wild.

It’s led to a tricky legal question: who’s responsible for that content?

Last week, the British Columbia Supreme Court made a ruling that could shake up the legal viewpoint on user comments.

In Weaver v. Corcoran, climate scientist and Green Party MLA Dr. Andrew Weaver won a defamation suit against the National Post for libellous columns questioning his credibility and competence.

One aspect of the victory that’s been largely overlooked is how judge Emily Burke absolved the Post for defamatory reader comments. As part of his lawsuit against the paper, Weaver also held the Post responsible for libellous comments on the articles.

“The parties are of the view this case raises, for the first time in Canada, the issue of whether one who operates an internet forum — in this case a reader comment area on the newspaper’s website — is liable for third-party postings,” the judgment reads.

The paper used the defence of fair comment and “innocent dissemination,” which can protect parties who distribute defamatory content, even if they didn’t publish it.

Those “subordinate distributors,” such as libraries, news agents, and book stores can escape liability by demonstrating that they’re unaware of any libel, have no reason to suspect libel “and committed no negligence in failing to find out about the libel.”

Burke said some of the posts were undoubtedly vitriolic and defamatory, but still said the Post isn’t liable for them. She offered several reasons, including:

The Post’s website traffic: “The volume of postings is such it would not be realistic to expect the defendant to pre-vet every posting,” Burke said. That amounts to a passive role in comment moderation; without pre-vetting, the Post couldn’t know the comments were defamatory. However, that defence might not fly for another website that moderates its comments.

Awareness and removal: once the Post got word of those defamatory comments, it acted (relatively) quickly to remove them.

Therein lies an implication for other sites: once you’re warned about libellous content, you better move fast to remove it.

“Once the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date,” Burke said.

But because the Post didn’t author or publish the comments, its defence of innocent dissemination wasn’t really relevant.

Unless online commenting becomes much more civil and rational (don’t hold your breath), there are sure to be interesting new developments on this legal question in future cases.

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