Europe On The Verge Of Destroying Online Comments And Free Speech

from the don't-mess-it-up dept

We've written many times about the importance of protection against secondary liability for websites, such that they're not held liable for what their users do. In the US, thankfully, we have Section 230 of the CDA, which clearly states that websites cannot be held liable for speech made by their users. Frankly, we shouldn't need such a law, because it should be obvious: you don't blame the site for the comments made by others. That's just a basic question of properly placing liability on those responsible. But, in a world of Steve Dallas lawsuits, in which people will always sue companies with deep pockets, it makes sense to have explicit safe harbors to stop bogus litigation.

Somehow, with so much focus on the importance of secondary liability, we happened to miss an absolutely insane ruling that came out of the European Court of Human Rights last fall, in the case of Delfi AS v. Estonia, which basically said that any website that allows comments can be liable for those comments. In fact, it found that even when sites took down comments (automatically!) following complaints, they can still be liable, because they should have blocked those comments from going up in the first place. Bizarrely, the court basically says the site should have known that the article in question might lead to negative reactions, and therefor should have blocked comments:
In addressing this question, the Court first examined the context of the comments. Although the Court acknowledged that the news article itself was balanced and addressed a matter of public interest, it considered that Delfi “could have realised that it might cause negative reactions against the shipping company and its managers”. It also considered that there was “a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.” Accordingly, the Court concluded that Delfi should have exercised particular caution in order to avoid liability.

Next, the Court examined the steps taken by Delfi to deal with readers’ comments. In particular, the Court noted that Delfi had put in place a notice-and-takedown system and an automatic filter based on certain ‘vulgar’ words. The Court concluded that the filter, in particular, was “insufficient for preventing harm being cause to third parties’. Although the notice-and-takedown system was easy to use - it did not require anything more than clicking on a reporting button – and the comments had been removed immediately notice had been received, the comments had been accessible to the public for six weeks.

The Court considered that the applicant company “was in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public”.
Even more troubling for those of us who believe in the importance and value of unregistered and anonymous commenting, the court found those features to be particularly problematic:
By allowing comments to be made by non-registered users, Delfi had assumed a certain responsibility for them. The Court further noted that “the spread of the Internet and the possibility – or for some purposes the danger – that information once made public will remain public and circulate forever, calls for caution”. In the Court’s view, it was a daunting task at the best of times – including for the applicant - to identify and remove defamatory comments. It would be even more onerous for a potentially injured person, “who would be less likely to possess resources for continual monitoring of the Internet”.
The reason that we're bringing this up now is because plenty of folks, quite rightly, freaked out about this ruling, and asked the European Court of Human Rights to reconsider. And that's now going to happen in early July. The Financial Times has a long and quite interesting look at the case and related issues, including a discussion at the beginning about the nature of online comments. For many years we've talked up the value of anonymous comments and how wonderful they've been for our community here. We've always taken an exceptionally light touch to moderation, allowing anyone to comment, and just trying to weed out the spam. And it's worked well for us. A ruling like the one above doesn't directly impact us, seeing as we're an American company with all our servers here, but it's immensely troubling in general and could create widespread chilling effects on any site that relies on user generated content. But it goes beyond that:
For Eric Barendt, Goodman Professor of Media Law at University College London from 1990 until 2010, the ruling doesn’t adequately balance freedom of speech against an individual’s right to protect his or her reputation. “I wouldn’t stick my neck out to say the ECtHR’s judgment was ridiculous,” he tells me, “but I know many people who would. How bizarre that this case could be the straw that breaks the camel’s back.”

The judgment will not only affect whistleblowers, says Aidan Eardley, a London-based barrister specialising in data protection and media-related human rights law. “It’s also bad news for people who want to comment about sensitive personal issues such as domestic abuse, sexual identity, religious persecution, etc.”

As Sarah Laitner, the FT’s communities editor, says: “It’s important to remove any hurdles a reader may face to participation. Some people feel that they are able to comment more freely if they can use a pseudonym.”
On July 9th, the Court will reconsider its original ruling, and for the sake of free speech online, we hope it reverses its earlier ruling. Between this and the recent right to be forgotten ruling in the EU Court of Justice, Europe is quickly becoming a dangerous free speech nightmare. While these rulings may have the best of intentions, the wider impact of both can do an astounding job in stifling public participation and comment.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    TheResidentSkeptic (profile), May 28th, 2014 @ 7:52am

    An opposing point of view..

    .. might say that Content Industries rejoice at Europe being the first to get the internet "under control".

    Of course, they would be wrong.

     

    reply to this | link to this | view in thread ]

  2.  
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    Just Another Anonymous Troll, May 28th, 2014 @ 8:08am

    So basically, you're only allowed to post good news now? And because no news is good news, does that mean that journalism is now banned? After all, journalism is almost the same thing as terrorism in the UK, and that's good enough for the government!

     

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  3.  
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    Anonymous Coward, May 28th, 2014 @ 8:18am

    I see this is actually a good thing. Europe pulling one way, the USA trying to literally snatch everything and run in the opposite direction. Eventually we'll find a reasonable middle ground. Or, potentially, each petty despot (US, EU, African nations, Asian and Pacific areas) can all have their own little sandbox to play in (and reduce liberty locally only instead of internationally). Personally, the sandbox idea seems more and more appealing. Its unfortunate, but I don't see how we'll be able to merge all of our nations' networks into a single global network again after the fracturing we've seen lately, legally speaking or surveillance-wise.

     

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  4.  
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    Anonymous Coward, May 28th, 2014 @ 8:19am

    This is a little bit of an over reaction, i would say.

    yes the EU court of Human Rights has made a pretty awful ruling here but it will almost definitely be overturned.

    You do get these funnies in Europe sometime where you have competing interests of 26 members countries sometime plain daft things seem to slip through the net.

    What you say this was a Court Decision!! well even in the Courts there is politics in Europe!

     

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  5.  
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    Michael, May 28th, 2014 @ 8:22am

    there was “a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.”

    What's the average risk of this? I would tend to say that any controversial topic that allows anonymous commenting has a 100% chance that "negative comments could go beyond the boundaries of acceptable criticism".

     

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  6.  
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    beech, May 28th, 2014 @ 8:25am

    Response to: Anonymous Coward on May 28th, 2014 @ 8:18am

    Its unfortunate, but I don't see how we'll be able to merge all of our nations' networks into a single global network again after the fracturing we've seen lately

    Yeah, the internet was a nice place until the government decided to get involved.

     

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  7.  
    identicon
    Jamie Dransfield who lives in UK and is a white ma, May 28th, 2014 @ 8:30am

    If you got nothing to hide...

    *Goes to walk naked downtown in the middle of the day*
    Hey everyone! I not afraid anymore!

     

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  8.  
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    Anonymous Coward, May 28th, 2014 @ 8:41am

    Re:

    I'm not American, but I note that the USA has the advantage of some commendable principles baked into their government from the start. To paraphrase Galileo:

    I do not believe that the same founding fathers who endowed us with freedom of speech and the right to privacy has intended for us to forgo their use.

     

    reply to this | link to this | view in thread ]

  9.  
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    Michael, May 28th, 2014 @ 8:44am

    Re: Killing surfing habbits

    I'm pretty sure that's illegal now.

     

    reply to this | link to this | view in thread ]

  10.  
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    Anonymous Coward, May 28th, 2014 @ 9:12am

    Re: Re:

    we've legislated those away. because terror. because children.

     

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  11.  
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    Chronno S. Trigger (profile), May 28th, 2014 @ 9:16am

    That was a dumb ass ruling. They should have known it was going to spark higher then average risk of negative comments.

     

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  12.  
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    Anonymous Coward, May 28th, 2014 @ 9:25am

    Re:

    This is not an EU court, it is under CoE and thus includes Russia and former soviet countries. 47 countries in total.

    But yeah, absolutely. It is tragicomical how much politic gets in through the backdoor. Look at COREPER A points and how that side of things work.

     

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  13.  
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    john smith, May 28th, 2014 @ 9:46am

    The right to protect reputation

    If Americans hadn't used Section 230 as a weapon for abuse, this might not be happening now. Intransigence by search engines is particularly fueling this.

    Thanks to Section 230, if *one* person has an axe to grind, they can destroy your reputation for the entire world, forever, and anyone who quotes them is immune? I don't think so.

    There's no free speech for peopel who get lied about every time they participate in an online forum, just because other lies about them make them an easy target.

     

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  14.  
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    sorrykb (profile), May 28th, 2014 @ 10:23am

    “I wouldn’t stick my neck out to say the ECtHR’s judgment was ridiculous,” he tells me
    ...because if he did, he'd be sued for damaging their reputation.

     

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  15.  
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    Anonymous Coward, May 28th, 2014 @ 10:29am

    Re: The right to protect reputation

    There's no free speech for peopel who get lied about every time they participate in an online forum,

    You can have a largely uncensored Internet. or an Internet that is no more than a media distribution and shopping catalog. The number of people posting on the Internet does not allow for a middle ground. The Internet is either open, allowing anybody to try and get their voice heard, or it has a few gatekeepers who decide what small percentage of people get to have their voices heard.

     

    reply to this | link to this | view in thread ]

  16.  
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    Anonymous Coward, May 28th, 2014 @ 10:30am

    Re: The right to protect reputation

    There's no free speech for peopel who get lied about every time they participate in an online forum

    Actually, there is. Plenty for everyone.

     

    reply to this | link to this | view in thread ]

  17.  
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    Anonymous Coward, May 28th, 2014 @ 11:01am

    Re: The right to protect reputation

    Thanks to Section 230, you should go after that one magical person who somehow has the ability to destroy your entire reputation with some internet comments.

     

    reply to this | link to this | view in thread ]

  18.  
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    John Fenderson (profile), May 28th, 2014 @ 12:47pm

    Re: The right to protect reputation

    "If Americans hadn't used Section 230 as a weapon for abuse"

    I honestly don't know what you mean here. Can you elaborate and/or give examples?

    "if *one* person has an axe to grind, they can destroy your reputation for the entire world, forever, and anyone who quotes them is immune? I don't think so."

    And you shouldn't think so, because this is not true.

    "There's no free speech for peopel who get lied about every time they participate in an online forum"

    That's just silly. Of course such people have free speech. Lat I checked, being lied about doesn't stop the person from speaking in any way they like.

    Also, if there's actual lying going on, that's libel and can be prosecuted as such. Nobody is saying that's not the way it should be. What 230 does is makes sure that the person getting sued is actually the correct person (the one who committed the libel) and not an innocent third party.

     

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  19.  
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    AnonyBabs, May 28th, 2014 @ 12:59pm

    Re: The right to protect reputation

    Is that you, Mayor Ardis?

     

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  20.  
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    Anonymous Coward, May 28th, 2014 @ 1:01pm

    just as in the USA, the highest courts in the land are supposed to be attended by the cleverest people in the land. we, the ordinary people, rely on them having that sense and being able to use it, well, sensibly. yet time and time again, we find these people putting out the most ridiculous rulings that only idiots could really think up and screw the people into the ground on subjects that should be basic rights. what the hell is going on in the world? yes, every government is going capitalist, harming their own people and country in favour of particular industries, but when this sort of thing happens, it's really beyond belief!

     

    reply to this | link to this | view in thread ]

  21.  
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    Sheza, May 28th, 2014 @ 4:27pm

    The Daily Mail Online blocks comments frequently with articles that it knows will be controversial. (Okay, all DM articles are controversial, but you get my point).

     

    reply to this | link to this | view in thread ]

  22.  
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    whatever, May 28th, 2014 @ 5:16pm

    Re: Re: The right to protect reputation

    "What 230 does is makes sure that the person getting sued is actually the correct person (the one who committed the libel) and not an innocent third party."

    Let me ask you this: If you have a sandwich board, you allow someone else to write a libelous message on it, and then you walk around town with on, are you somewhat responsible for your actions? It's likely a court would say "yes, to some degree". Do you think that the responsibility would change if you could not identify the person who wrote the message, or could not even show that the message was written by someone else? The courts would likely consider that you may have written the message yourself.

    Section 230 creates an unusual legal situation where online message boards and such are more protected than their real world peers. You couldn't post up "Mike Masnick is a (insert untrue statement here)" on a pinboard in your local supermarket and have it stay there indefinately, but there are plenty of places online where such a statement would like on forever. Moreover, search engines like Google become an echo chamber for such untrue statements, making it all that much worse.

    Section 230 has created a situation where the rights of the speaker have come to outweigh the rights of the offended. The court ruling mentioned above seems to acknowledge the issue, and while it is perhaps a ruling too far, it does raise the legitimate question of who is responsible for online posting - especially anonymous postings (such as mine).

     

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  23.  
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    Anonymous Coward, May 28th, 2014 @ 6:50pm

    Mayberry

    Every time I read something like this, I have this vision of Andy Griffith picking up the antique phone and asking Sarah, the telephone operator, to connect him with Aunt Bee.

    Maybe they should quit showing reruns of The Andy Griffith Show in Europe, and replace it with the Jetsons.

     

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  24.  
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    Anonymous Coward, May 28th, 2014 @ 6:59pm

    U.S. - Prior Restraint and Standards

    The problem is with Standards, and opportunity for Appeal

    See:

    COMMONWEALTH OF VIRGINIA v. KEVIN LAMONT HICKS 2002

    The narrow issue that we consider in this appeal is whether a redevelopment and housing authority's trespass policy is overly broad and thereby violates the First and Fourteenth Amendments to the Constitution of the United States...

    ...unwritten policies...

    As a part of the Housing Authority's unwritten policies, (name), the Housing Authority's housing manager for Whitcomb Court, was required to determine whether a person can demonstrate a legitimate business or social purpose to use the Housing Authority's property.


    Pursuant to these policies, individuals who sought access to the Housing Authority's property, including the streets, needed to obtain (name)s' permission for such access...

    Sometimes, she referred such request to a "community council" which met with "the Board and the residents." ...
    The Housing Authority, however, has not promulgated any written policies or procedures that govern decisions regarding who may distribute materials or participate in activities on the Housing Authority's property.

    Pursuant to the Housing Authority's unwritten policies, an individual who is not authorized to use the Housing Authority's property and does so is warned by the Richmond Police Department. The Housing Authority forwards a letter to that individual informing him that he may not lawfully return to the property. ..

    Contrary to the Commonwealth's assertions, Hicks was not required to file a civil proceeding to challenge the Housing Authority's trespass policies and practices.

    Rather, this defendant was entitled to challenge the validity of his conviction on the basis that the Housing Authority's practices and procedures contravened his constitutional rights. ..

    The Supreme Court has held that in the context of a First Amendment challenge, a litigant may challenge government action granting government officials standardless discretion even if that government action as applied to the litigant is constitutionally permissible. ..

    The Supreme Court has consistently and repeatedly invalidated government policies that facially vested officials with broad and unfettered discretion to regulate speech. ..

    In Lakewood, the Supreme Court applied these principles and invalidated a city ordinance that permitted a mayor to grant or deny a permit to a publisher who desired to place a news rack on a sidewalk. The ordinance placed no limits on the mayor's discretion to grant or deny the requested permit. The Supreme Court stated that this lack of limitations upon an official's discretion "renders the guarantee against censorship little more than a high sounding ideal."...

    In Staub, supra, the Supreme Court invalidated an ordinance that permitted a mayor and a city council to grant or deny a permit to a labor union allowing it to solicit members based upon the "effects upon the general welfare of citizens of the City of Baxley." …

    In Staub, supra, … The Court stated:
    "These criteria are without semblance of definitive standards or other controlling guides governing the action of the Mayor and Council in granting or
    withholding a permit. Cf. Niemotko v. Maryland, 340 U.S. 268, 271-273 [(1951)]. It is thus plain that they act in this respect in their uncontrolled discretion.

    "It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official – as by requiring a permit or license which may be granted or withheld in the discretion of such official – is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms."

    We also observe that in Lovell, supra, ... The Court observed:

    ...press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish 'without a license what formerly could be published only with one.' ...Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form."

    Applying the principles established by the Supreme Court, we hold that the Housing Authority's trespass policy is invalid because it is overly broad and it infringes upon First Amendment protections. Even though the Housing Authority's trespass policy, which is written in part and unwritten in part, is designed to punish activities that are not protected by the First Amendment, the policy also prohibits speech and conduct that are clearly protected by the First Amendment. ..

    We observe that the United States Supreme Court and the various United States Courts of Appeals have permitted litigants to assert First Amendment facial challenges to unwritten government policies. ..

    Rogers, the Housing Authority's housing manager for Whitcomb Court, testified that the Housing Authority has not implemented written procedures or guidelines concerning the enforcement of the trespass policy. The Housing Authority has not implemented any guidelines that delineate how an individual may obtain permission to use the property. Even though "authorized" persons may use the Housing Authority's property, Rogers, in the exercise of her unfettered discretion, is the government official who determines whether an individual is authorized...

    However, a citizen's First Amendment rights cannot be predicated upon the unfettered discretion of a government official.

     

    reply to this | link to this | view in thread ]

  25.  
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    John Fenderson (profile), May 28th, 2014 @ 7:51pm

    Re: Re: Re: The right to protect reputation

    "It's likely a court would say "yes, to some degree"."

    Not unless I told them to. Which is precisely what 230 says.

    "Do you think that the responsibility would change if you could not identify the person who wrote the message"

    The ability to identify commenters isn't relevant to 230. 230 is about ensuring that liability attaches to the people who do wrong things.

    "Section 230 has created a situation where the rights of the speaker have come to outweigh the rights of the offended."

    I don't agree at all. The rights of the offended are the same as they have always been. The rights of the speaker remain the same as well. The only thing 230 does is to ensure that the responsibility for speech falls on the people actually doing the speaking.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, May 28th, 2014 @ 7:57pm

    Re: Re: Re: The right to protect reputation

    Well, yes, maybe because you don't have a right not to be offended.

     

    reply to this | link to this | view in thread ]

  27.  
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    Whatever, May 28th, 2014 @ 8:50pm

    Re: Re: Re: Re: The right to protect reputation

    end to end denial. Good.

    You missed the point however. If you owned a signboard that said something libelous, and you could not identify who paid for the ad, the courts could easily conclude that you are in fact the source yourself. SODDI doesn't really stand up in court very well here. So in this case, 230 allows websites to accept anonymous contents without any proof of source, yet to also avoid any liability for hosting them. The real world and the online world do not match here.

    At bare minimum, in the signboard situation, the courts would likely order the offending ad / posting removed. They might also conclude that the signboard owner should not have posted it to start with, and assign some liability. The inability to identify the "other guy" who created the message would certainly create issues.

    What 230 does right now is create a situation where nobody is responsible, the original poster can be entirely anonymous and bear not responsibility for their words, and the website providing the distribution of those words swims away as well. That really creates an unfair balance, don't you think?

     

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  28.  
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    Ryuugami, May 28th, 2014 @ 10:16pm

    Re:

    I would tend to say that any controversial topic that allows anonymous commenting has a 100% chance that "negative comments could go beyond the boundaries of acceptable criticism".

    Or any topic at all, really. Just look at all the trolls around here.

    Mike could write an article about the cuteness of kittens and someone would jump at his throat.

     

    reply to this | link to this | view in thread ]

  29.  
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    Paul Keating, May 29th, 2014 @ 4:27am

    damned if you do - damned if you dont

    So, you can avoid liability by having everything in the US..........but everything is then read by the NSA.......

    You can avoid the NSA by having everything in Europe...........but then are liable for what some *&%$ dirtbag said gratuitously about the NSA.

     

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  30.  
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    John Fenderson (profile), May 29th, 2014 @ 8:42am

    Re: Re: Re: Re: Re: The right to protect reputation

    "At bare minimum, in the signboard situation, the courts would likely order the offending ad / posting removed"

    Yes, and 230 doesn't prevent the same thing happening online.

    "They might also conclude that the signboard owner should not have posted it to start with, and assign some liability."

    If the signboard owner is the one who posted it, then 230 doesn't enter into it in the online version either.

    "The inability to identify the "other guy" who created the message would certainly create issues."

    I'm still not solidly understanding why you bring up anonymity. I believe you're saying that anonymity makes it more difficult to prove that the owner/operator of the site isn't the one who posted the comment. Is that correct? If so, then I have two responses: that's a point that speaks to an evidence chain, not to 230. Also, the owner/operator can certainly maintain the ability to reasonably show they didn't post a given comment even if they don't know who did.

    "That really creates an unfair balance, don't you think?"

    I disagree with your premise. It's really pretty hard to post comments that can't be traced back to you if you have the legal authority to compel the production of records. 230 doesn't remove that legal authority. 230 certainly doesn't create a situation where "nobody is responsible". The poster is responsible. That it may or may not be easy to find out who the poster is is irrelevant to the point. It is unjust and immoral to pin liability on someone else just because it's hard to find the actual culprit.

     

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  31.  
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    John Fenderson (profile), May 29th, 2014 @ 8:45am

    Re: Re: Re: Re: The right to protect reputation

    I may be wrong, but I believe he was using "offended" in the sense of someone who has had an offense committed against them, not in the sense of someone whose feelings were hurt.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Zonker, May 29th, 2014 @ 12:46pm

    Re: Re:

    Mike could write an article about the cuteness of kittens and someone would jump at his throat.
    How dare you slander puppies with your pro-kitten bias, you Commie-Nazi Google loving copyright hating scumbug! You're wrong, I'm right, because . Bark bark BARK bark *BARK*!

    (Am I doing this right?)

     

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  33.  
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    Pragmatic, Jun 1st, 2014 @ 1:28pm

    Re: The right to protect reputation

    @ John Smith, I've been where you are, buddy. Proper moderation would see off the reputation-wreckers but when it's absent, get out of Dodge. Attempting to stand your ground and fight for your principles is a losing battle if you don't have the site admins behind you. Other forums exist, go to them instead, use a different pen name, and make no allusion to your other forum experience.

    Sorry that's not more comforting but that's how I dealt with it after years of pointless fighting. I know what you mean about freedom of speech there, but when you're surrounded by clowns it's not worth your while to be the straight man. He's the one who gets the pie in the face.

    You have the option to track down and sue the reputation-wreckers or to complain about your situation elsewhere in the hope of gaining some support. There's no easy answer to this; we either let the Puke Patrol win this time and wait till it all blows over (it takes about three months) or we fight a losing battle till we've spent all our money and have little, if anything, to show for it.

    Your reputation is only spoiled in the circles in which you formerly moved. It's not destroyed everywhere, nor is it destroyed forever. I've been able to set up and run a business with no blow-back from the forum crap. I successfully left it behind. And I can speak as I please, as long as I don't do so in the forums or blogs I used to post on. They're not interested in tech. If they can't find me, they can't hassle me.

     

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  34.  
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    YellowYam, Jun 26th, 2015 @ 3:59pm

    Re: Re: Re:

    Well, technically we never had those rights. Rights have always been the privilege of the rich. American exceptional-ism is and always has been a bald-faced lie. Just like everywhere else, in America the law exists to protect the property of the wealthy. And this is the sort of message that those interests want to quash by outlawing comments. People can never revolt so long as they don't discover they are slaves with ever dwindling allowances.

     

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  35.  
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    YellowYam, Jun 26th, 2015 @ 4:06pm

    Re: Re: The right to protect reputation

    If there were free speech, you would know my name, and I would know yours. This legislation intends to destroy individual anonymity, which in sufficient quantity allows a blackmarketplace of good ideas for use by the working class. In other words, the anonymous internet creates intelligent slaves, which threaten the slave masters by being smart. They want to silence the slave voice.

     

    reply to this | link to this | view in thread ]

  36.  
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    YellowYam, Jun 26th, 2015 @ 4:09pm

    Re:

    The highest courts in USA are dominated by nepotism propelled Jews like Elena Kagan. Oh no! The truth in a comment! Someone should make that illegal.

    The United States is working on phasing out comments as well, on a conspiratorial level. I've seen them disappearing randomly lately.

     

    reply to this | link to this | view in thread ]


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