If A Site Uses Third-Party Moderators Who Do Something Bad, Does The Site Lose Safe Harbors?

from the that-would-be-bad dept

Last year, we wrote about a rather straightforward case where a nutritional supplement company had sued the operators of the forum bodybuilding.com, because of some unflattering comments posted in the forum. The court quickly tossed out the case on Section 230 grounds, noting that a site is not liable for the actions of its commenters. However, Eric Goldman alerts us to the latest in that case, which is a bit more troubling. After having the case transferred to a different court, the supplement maker used a new argument, claiming that it was false advertising and that since a third-party "moderator" posted one of the messages, the site is now responsible. That's basically how the company tried to get around Section 230.

The court, unfortunately, seems to have agreed. While it does note that bodybuilding.com has Section 230 immunity despite having third party moderators, it allows for the possibility that since one of the moderators may have posted one of the messages in question, the moderator could be considered "a representative of the site." This goes against a whole series of case law, which Goldman lists in his post, and could create all sorts of problems for sites that use volunteer or third party moderators. Of course, this was just in response to the motion to dismiss, so the court could come back and say that third party moderators don't make a site liable, but it's worth paying attention to this case. As Goldman notes: "I really can't imagine Web 2.0 succeeding without a robust cadre of site admins and moderators helping self-police an online community."


Reader Comments (rss)

(Flattened / Threaded)

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    Andrew F (profile), May 6th, 2010 @ 12:32am

    Analogies

    I wonder how they tried to explain this to the judge. My approach would be to say moderators are like those passengers who sit in the exit rows and are charged with popping open that door after an emergency landing. They have extra duties and responsibilities but don't represent the airline in the way a flight attendant or pilot would.

    That's not a great metaphor though. Anyone have a better one?

     

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    Ralph-J (profile), May 6th, 2010 @ 12:45am

    Are these moderators just upgraded users, or more like employees?

    Many websites allow very active users to get some extra "powers", but they're still only users. Section 230 should apply.

    On the other hand, if these 3rd-party moderators are at a comparable level to employees, for instance temp contractors from a job agency, they are fully acting on behalf of the site (by contract), and so the site should also take blame for their mess-ups.

     

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    Michial Thompson, May 6th, 2010 @ 4:12am

    Moderators are affectively unpaid employees

    Simplest Argument for this would be that the Moderators are selected by site owners, and are affectively employees that don't get paid.

    Since they are selected by the Site Owner to "enforce" site rules they are affectively representing the site and site's interests.

    Not a difficult arguement, and if the Moderator IS doing something wrong the site owner SHOULD be responsible, and not allowed to hide behind section 230.

    Section 230 shouldn't be a global pass for the site owner for the content on the site.

     

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      Anonymous Coward, May 6th, 2010 @ 7:29am

      Re: Moderators are affectively unpaid employees

      If you don't get compensated for work, you are not an employee. You're a volunteer. This is actually quite a large difference.

       

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        Michael, May 6th, 2010 @ 10:17am

        Re: Re: Moderators are affectively unpaid employees

        So is a company not liable for the actions of an intern? I actually don't know the answer to that.

        This will be an interesting case to watch. I'm not sure what way this should go. Initially, common sense tells me that the site should not be responsible for the actions of it's moderators, but I'm not sure that works the way other "volunteer" programs should.

        If a company can screen employees well enough to be comfortably responsible for their actions, why not employ the same kind of screening for your moderators? That argument makes sense to me in a lot of cases, but it seems to drop a lot of liability on the sites that could be really misplaced. On the other hand, they are using unpaid moderators to save money, so maybe screening them should just be the cost of business.

         

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    NAMELESS ONE, May 6th, 2010 @ 4:44am

    in canada

    only if a actual law is breached
    i warned a site were there was a serious breach of my security the next time would result in a lawsuit. As the site was for many ISPS to host there tech support they can pass the buck so i went right at source.
    OF course that makes ya all popular there and they find any reason now to mess with posts i make "off topic removed , when its on topic that sorta crap.

    others are scared to make posts, and others still just dont bother going there. YOU cant even openly complain as they remove such posts.

     

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    abc gum, May 6th, 2010 @ 5:05am

    Wait a sec

    One should not assume the case has legs and the only impediment is section 230. This was the original reason for tossing the case, that does not mean the case has merit by itself. On the surface, it appears that the plaintiff is too sensitive to criticism. Maybe they should spend more time on competing rather than litigating, or perhaps its the steroids talking.

     

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    Anonymous Coward, May 6th, 2010 @ 5:47am

    at the end of the day, the moderators perform a vital function for the company that would have to be otherwise performed by paid employees. the status as moderator and the somewhat god like powers (in their mind) is payment in kind for their work as moderators. the board owners 'hire' and 'fire' these people, and likely provide guidelines or information on how to moderate. it is hard to see how they can not be considered employees in one form or another.

     

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    WarningMan, Jul 14th, 2010 @ 8:25am

    Google Ad-Sense Ad-Word Trash

    Google Ad-Sense is a pure Hack and/or Social Engineering Hack! Seriously, they offer to allow me to put ads on this site and said they will pay me. This is supposed to cost nothing, so a added some little adds, ok, for now this cost nothing, good. But little time after they sent me a pseudo 100$ credit for and ad-word account, i tried...error they says i must open a separate account (ad-word and ad-sense is 2 separate account), but surprise this one cost like 20$.. ok after a little read this seam to be a ok investments since this will increase ad-sense profit BUT after 30 ad-sense bucks, they shut down my payment, said that i don't follow rules, but didn't said what i did wrong and never answer me after several attempt. I think they should verify the site prior to asking cash. So a lost 20$, never receive my 30$ supposed profit. So development of this site will be slowing down to stop if no other cash source is found. Tanks for suggestions.

     

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    figure competitor blog, Aug 20th, 2012 @ 11:37pm

    figure competitor blog

    I am confusing what they want to do in actual and what they are trying to explain to the judge. I personally think that if the moderator doing something wrong then site owner should be responsible. It is simple case don't try to make it so complicated.
    figure competitor blog

     

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