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Why Moderating Comments Doesn't Remove Section 230 Protection, And Why More Lawyers Need To Understand This

from the on-the-other-hand,-it-gives-us-plenty-to-write-about... dept

Here at Techdirt, we've covered a large number of bogus C&Ds. One thing many of them have in common (besides being vague about what they find actionable) is a misunderstanding of the Section 230 protections afforded to site owners. It seems as though that part of the law gets lost when aggrieved parties are offended by comments or forum posts.

And while it's fine for companies and individuals to be confused about who's ultimately responsible for allegedly defamatory posts, it's very definitely not OK when their legal representation makes the same mistake. As we covered recently, a financial blogger received a C&D from a trust company over a comment made by a forum member. The first letter completely avoided discussing Section 230 (but made room for trademark and copyright infringement somehow)... which was fine, seeing as it was written by the company's chairman. However, another letter, written by an actual law firm, acknowledged these protections but then made the claim that because the blogger had the power to moderate his forums, he was no longer protected by Section 230.

But that's completely wrong. And it's not just one lawyer. It's several of them. The first mistake is targeting a site owner for third party content. This is compounded when legal reps operate under the false impression that doing anything to comments and forum posts (deleting, editing, etc.) revokes Section 230 protection.

Marc Randazza ran into exactly this problem while attending an accredited CLE (continuing legal education) "Attorney At Blog" conference recently. (h/t to Scott Greenfield)

I want to clear up one bit of bullshit that seems to continue to walk the earth, sort of like a legal bullshit zombie. The bullshit is the notion that if I delete ANY comments on this blog, then I lose my Section 230 immunity.

This comes to mind because this Friday, I had the pleasure of speaking at the Attorney At Blog conference. During that conference, a very nice lady “informed” the audience that her blog would delete problematic comments, but they couldn’t, lest they lose Section 230′s protection.

I felt like a dick having to correct her. But, I can’t let a room full of people leave dumber than they came in. If you come to a place for CLE credit, the least you should do is learn something true, right? Shockingly, she defended her position by saying that it was based on the advice of her attorney. I advised her to fire that attorney immediately.
This is a very common -- and stupid -- misconception. Any site owner can moderate heavily, or not at all, and still be equally covered. The relevant part of the law is here:
No provider or user of an interactive computer service shall be held liable on account of—

(A) 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…
This means site owners are free to handle their comment threads as they see fit. Here's how Randazza puts it.
I do delete comments from time to time. If I notice them and they are “excessively violent” or “harassing” or “otherwise objectionable,” I delete them. Why? First, its my blog, so my fucking rules. You have a right to express yourself, but not necessarily here. Second, I have absolutely no doubt in my mind that I can delete one comment and leave 100 filthy, objectionable, harassing, defamatory, nasty, and brutish comments and still not be liable.
I can understand why parties miffed about comments or forum posts might make the mistake of singling out site owners in their hurry to hold someone, anyone responsible for their ruffled feathers and hurt feelings. But what's not excusable is legal representation making that same mistake for them. They're paid to know the applicable laws and if they're not clear on the subject, they should do a little research.

And it's completely ridiculous that one attorney would regurgitate another attorney's assertion that moderating comment threads somehow makes site owners liable for the words, links, etc. of their readers.

Those whose lawyers have encouraged sending bogus C&Ds targeting site owners over third-party content need to take the same advice Randazza offers to site owners.
If you’re a Section 230 protected website operator and your lawyer has ever told you that you can’t act responsibly, lest you lose protection, then pick up your phone and dial his number (or her number, whatever). I presume you’ll get his voicemail. Leave this message “Hey, you’re either really stupid, or fucking dishonest. In either event, you’re fired, fucktard.”
I realize this protection is frustrating for everyone, from companies that can't take a little criticism to people who want their naked photos removed from revenge porn sites, but without it, the internet would be a barren, listless place. This culpability exception allows for a very vibrant web. If Reddit, Facebook, Twitter and millions of others were responsible for the content posted by their users, they would never have come into existence. Or they would have been sued off the face of the internet years ago.

This may seem like an unhealthy state of affairs for those currently aggrieved, but when you take into account the fact that a vast majority of internet users are generating billions of pieces of third-party content every day without defaming someone (or posting their ex's photo stash), you may finally appreciate why this protection is essential. Imagine the web as a top-down distribution system, more akin to a newspaper or TV station, and you're on the right (and very depressing) track.

Ultimately, the problem is with the lawyers who don't understand the law they're quoting. Site owners can be easily cowed by ignorant splashes of legalese on law firm letterhead, and for some lawyers, that's just as good as actually understanding the law -- if it has the desired effect. But people aren't paying legal reps to misunderstand the law for them. That's something they can do on their own. And when an attorney spews stupidity -- and cites another attorney's stupidity to back it up, that can't be addressed fast enough. Knowledge should be spread. There's no need to spread stupidity. It's not like the world is lacking.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Mar 21st, 2014 @ 4:33pm

    I'm astonished that people are afraid to moderate comments lest they lose protection under the CDA. This is precisely the rationale that section 230 was intended to prevent.

     

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    Marc John Randazza (profile), Mar 21st, 2014 @ 4:37pm

    AC,

    I suspect that not too many people are actually "afraid" and that they are just being dishonest, because they do not want to moderate. So, they put on the cheshire smile and say "oh, I would act responsibly, but if I did, I would lose my 230 protection."

    I really can't see how anyone could have trouble understanding that very simple language in 230.

     

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    •  
      identicon
      Anonymous Coward, Mar 22nd, 2014 @ 1:12am

      Re:

      They engaged their Paradox Warp drive chips, clearly.

       

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    •  
      icon
      art guerrilla (profile), Mar 22nd, 2014 @ 2:31am

      Re:

      further, it is always disappointing that:
      A. people in general do NOT understand the extreme importance of maintaining 'free speech' as the bedrock right upon which all other rights are dependent;
      B. that defending 'true' free speech means you defend the right of your vilest enemy to voice their worst speech, or you are not for free speech after all;
      C. ultimately, you find that FAR TOO MANY people are actually NOT for free speech when they find it means that people can say stuff they disagree with, or find objectionable, or whatever: THE NANO-SECOND free speech causes them to furrow their brow, they stop being for free speech...
      D. with the rare exception of techdirtia, FAR TOO MANY blogs/etc DO NOT want - much less encourage- free speech to any significant degree... to me, this is especially egregious coming from so-called progressive sites who refuse to tolerate free speech EVEN IN their little sandbox they control...
      disappointing and discouraging that in situations they 'own', they refuse to abide by principles they supposedly hold dear... the 'h' word comes to mind...

       

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    •  
      icon
      Andrew Norton (profile), Mar 22nd, 2014 @ 10:16am

      Re:

      I know the feeling. Sometimes after moderating Torrentfreak's comments, I want to smash my head into a wall, or shoot myself.

      People show their worst in comments.

       

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  •  
    identicon
    Lawrence D’Oliveiro, Mar 21st, 2014 @ 5:07pm

    What About Apple’s App Store?

    It seems to me that “otherwise objectionable” phrase implies that there must be something undesirable about the user-submitted content that you’re moderating. Whereas Apple’s App Store has a specific policy that Apple can remove anything it likes, for any reason or no reason at all, there need be nothing “objectionable” about it.

    So does Apple have Section 230 protections on its App Store?

     

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    •  
      identicon
      Anonymous Coward, Mar 21st, 2014 @ 6:23pm

      Re:

      It's Apple's app store, they can remove whatever they want for whatever reason they want. If You don't like that go make your own app store.

      The reason the Law states 'objectionable' is to prevent someone from arguing "well they removed malicious content about Sally but not me, proof they are out to get me and complicit in the crime!"

      The law makes it clear that just because the provider removed some other 'bad' content they cannot be held liable for not removing some other 'bad' content.

       

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      •  
        identicon
        Anonymous Coward, Mar 21st, 2014 @ 6:53pm

        Re: Re:

        The big question, though, isn't what the law says. It is how a judge/jury sees it. And if the plaintiff convinces that 230 doesn't apply, it doesn't matter what the law actually says.

         

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        •  
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          madasahatter (profile), Mar 21st, 2014 @ 10:54pm

          Re: Re: Re:

          The key is the judge's understanding of the law to given correct jury instructions. Incorrect jury instructions are grounds for appeal.

           

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          •  
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            art guerrilla (profile), Mar 22nd, 2014 @ 2:38am

            Re: Re: Re: Re:

            s-u-r-e, you betcha...

            and testilying by kops is grounds for appeal...

            now: you want to tell me how many times testilying happens versus how many times that is the reason for an appeal that gets overturned ? ? ?

            just a guess, but i bet there are THOUSANDS of instances of testilying that go by unchallenged -if not unnoticed- for every one that gets appealed...

            and you're supposed to do a 10 point safety check every time you get in your vehicle...
            and you're supposed to wash behind your ears...
            and...

             

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      •  
        identicon
        Lawrence D’Oliveiro, Mar 22nd, 2014 @ 1:25am

        Re: they can remove whatever they want for whatever reason they want

        Yes, I already said that. The question is, does that weaken Apple’s protections under Section 230?

         

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          TKnarr (profile), Mar 22nd, 2014 @ 10:49am

          Re: Re: they can remove whatever they want for whatever reason they want

          I don't think in principle it would. The key point seems to be whether items are reviewed before they're posted (eg. a newspaper's letters-to-the-editor page, items are generally not posted until an affirmative decision is made by the provider to post them) or after (eg. blog comments, items are generally posted without intervention by the provider and any review is done afterwards). The hard part would be keeping front-and-center the fact that Section 230 says such-and-such about the subject and any cases brought up that contradict that were based on special circumstances that don't apply in this case (arguing that the black letter of the law trumps contradictory case law might sound good, but it's a better argument during appeal than before a district judge and you want to win before having to appeal).

          In practice a comprehensive review policy, where the overwhelming majority of items are reviewed as a matter of course, might weaken an argument that Section 230 protects the provider from liability. Not because the review itself should weaken the protections, but because it gives your opponent an opening to argue that comprehensive review amounts to the provider making an affirmative decision about every item.

           

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      •  
        identicon
        Anonymous Coward, Mar 23rd, 2014 @ 6:39pm

        Re: Re:

        I think you've missed the point. The question is not whether Apple has the right to remove stuff as they see fit, or even whether this is a good thing, but whether they would lose their Section 230 protection by doing so.

        According to Section 230, the material has to be "objectionable". This appears to be a prohibition that is too vague to have a meaning, but you would have to test this legal theory in court.

         

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    •  
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      John Fenderson (profile), Mar 22nd, 2014 @ 12:36pm

      Re:

      It seems to me that "objectionable" in this context means "something the site owner objects to". By definition, if Apple removes something, it's because they objected to it. So it's objectionable, even if the objection is only "we already have a thousand of these fart apps in the store".

      I don't see how this in any way modifies section 230 protections.

       

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  •  
    identicon
    Anonymous Coward, Mar 21st, 2014 @ 7:56pm

    "if they're not clear on the subject, they should do a little research. "

    Using a search engine is too much work. Easier to just make up things and hope the person receiving the legal threat doesn't know any better.

     

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    Anonymous Coward, Mar 22nd, 2014 @ 1:35am

    If Section 230 comes up at the jury phase, shit has already gone badly wrong. The entire goddamn point of 230 is that you don't get embroiled in litigation so you don't wind up bankrupting yourself paying to defend all the way through a trial! I don't necessarily trust all judges, at least state court judges, to understand Section 230 (in fact I am not surprised when they ignore it because they just don't like it), but a jury should not be in play at the point where 230 protection comes up.

     

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  •  
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    btrussell (profile), Mar 22nd, 2014 @ 3:17am

    My defense would be "I am not a top defamation lawyer."

    Kinda like when you say a person was shot and killed, they want to know what makes you an expert on "cause of death."

     

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  •  
    icon
    Gerald Robinson (profile), Mar 22nd, 2014 @ 10:24am

    3rd party liability

    It appears from some of the leaked TPP and TTIP treaty materials that they will be used to impose 3rd party liability bypassing these protections. Now is a good time to write your congressman and tell him not to pass either treaty and not to give Obama TPA (Fast track).

     

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  •  
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    Gerald Robinson (profile), Mar 22nd, 2014 @ 11:58am

    review

    I am not an attorney but that seems to me to be a specious arguement. Without an at least comprehensive review—however cursory—how can scurrilous posts be identified?

     

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    •  
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      John Fenderson (profile), Mar 22nd, 2014 @ 12:39pm

      Re: review

      On most sites I've seen they are identified in one of two ways: users reporting the comments or a moderator happening across them. A comprehensive review isn't needed.

       

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  •  
    identicon
    DensityDuck, Mar 23rd, 2014 @ 12:26pm

    Depraved Indifference as a defense?

    See, that still doesn't work.

    As an earlier commentor pointed out, if you delete things that you find "objectionable" for subjective reasons, then you implicitly approve of the things you don't delete.

    If your argument is "well there are like TONS AND TONS of comments, you can't expect me to read EVERY ONE," then what you're trying to do is to argue that you're an irresponsible idiot.

    Section 230 protections don't apply when the operator can be shown to have positive knowledge of illegal activity. And if you argue that you provided a free space but the scope of activity was too large for you to monitor it all, then you're exhibiting a depraved indifference and therefore liable for the users' conduct.

    The best you can do is to argue that you ONLY delete comments which are brought to your attention be a third party, either a user or a non-user visitor.

     

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    •  
      identicon
      DensityDuck, Mar 23rd, 2014 @ 12:29pm

      Re: Depraved Indifference as a defense?

      But if you only delete reported comments, then you can't break into a thread and be all "I'm shutting this down" or "fuck off you libtard" or "go read a book, moonbat".

      Basically, if you can delete whatever you want because it's your FUCKING weblog, then you are FUCKING responsible for what goes on in your FUCKING comments section.

       

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      John Fenderson (profile), Mar 24th, 2014 @ 6:50am

      Re: Depraved Indifference as a defense?

      "if you delete things that you find "objectionable" for subjective reasons, then you implicitly approve of the things you don't delete."

      I disagree completely. There is no such implication. You're engaging in the logical fallacy of the excluded middle.

      As an example, I respond to some comments here that I disagree with, but far from all. If I don't respond to a comment, it doesn't imply that I agree with it.

       

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    •  
      identicon
      Jhn, Mar 29th, 2014 @ 12:32am

      Re: Depraved Indifference as a defense?

      Your argument is along the lines of, "Of course it would be absurd if a law such as section 230 existed." But there's something important that your commentary misses: it does.

       

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  •  
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    nasch (profile), Mar 24th, 2014 @ 11:05am

    Ignorant?

    I'm not sure about your assumption that these lawyers are ignorant of what 230 means. It seems just as likely they don't really care what it means, and are figuring that the target of the threat letter doesn't know what it means (very likely correct), and so the threat is likely to be successful.

     

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