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Who is responsible for posts on Internet forums?

February 13th, 2009

At e-thePeople.org, we long ago adopted the policy not to police what members posted on our boards. We adopted this policy for several reasons. First, we wanted to allow the members to be responsible for defining and enforcing the community standards. Second, we did not want to incur the (unscalable!) costs of moderating a large forum. Third, we were worried that we would risk legal liability by selectively moderating the content on our site.

Well, it seems that the third reason may not be valid. According to this legal argument, newspapers and other publishers are not usually legally liable for the content on their sites. Scrubbing out expletives is ok! Removing posts is ok! Here are the takeaways:

— The first is if you passively host third-party content you are going to be fully protected under Section 230.

— If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove or edit material, you will not lose your immunity unless your edits materially change the meaning of the content.

— If you pre-screen objectionable content, correct or edit or remove content after publication, you are not going to lose immunity.

— If you encourage or pay third parties to create or submit content, you will not lose immunity.

— If you use dropdown forms or multiple-choice questionnaires, you should be cautious of allowing us

I hope he is correct, for the sake of free speech! But I do worry that big sites will always be big targets for law suits, regardless of the legal merit of their cases. (Hat tip: Jay Rosen)

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