Before the Thanksgiving holiday, Steve Tobak at CNET published a useful post -- "Bloggers beware: You're liable to commit libel." In it, he gives a straightforward and largely accurate account of the elements of a defamation claim and some good general advice:
First, people usually ask the wrong question: "Can a blogger be sued for defamation?" The sad truth is that almost anybody can sue you for almost anything these days. So, don't ask that question; it's dumb. What you want to know is your responsibility under the law, and therefore, how best to protect yourself from successful litigation.
Well put. But I have to disagree with his assessment of the risks involved in hosting user comments:
Then there's the question of who's responsible for comments on a blog. Whoever publishes the Web site is responsible for content on the site. That includes comments. However, many bloggers have independent agreements to indemnify the site that publishes their blog. That may or may not include comments.
Plaintiffs can certainly sue everybody in the chain and see what sticks, though they will likely go after those with the deepest pockets. You can avoid the entire question by turning comments off.
Mr. Tobak's remarks entirely fail to take CDA 230 into consideration. "CDA 230" refers to a federal statute, 47 U.S.C. § 230, which Congress enacted as part of the Communications Decency Act of 1996. It states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" and preempts state law causes of action, like defamation claims, based on this kind of "publisher" liability. Courts and commentators widely agree that CDA 230 protects website operators and bloggers from liability based on the defamatory statements of commenters. The defense applies even if you edit comments (so long as your edits do not change the meaning) and/or exercise discretion in selecting which comments to post. So, there is no call for "turning comments off" out of fear of a defamation lawsuit.
CDA 230 also applies to legal claims other than defamation, including publication of private facts, false light, negligence, tortious interference with business relations or expectancy, and intentional infliction of emotional distress, to name a few. It does not, however, apply to intellectual property claims (such as copyright infringement), federal criminal law, or claims under the Electronic Communications Privacy Act. If copyright is your worry, website operators and bloggers are potentially insulated from copyright liability based on user-posted material, if they meet the requirements of the "safe harbor" provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512.
We'll be addressing CDA 230 and the DMCA safe harbor provisions in our forthcoming legal guide, but for now there's a useful, if slightly technical, article on these topics at Law.com. Additionally, the EFF has a helpful FAQ on CDA 230.