High Court: Moderate user comments and you're liable

A blog owner can avoid liability for user-generated content that appears on his site without being checked or moderated, the High Court has ruled. But fixing the spelling or grammar in users' posts could lose him that protection, it said. The Court ruled that the operator of blogging site Labourhome.org could not have a libel …

[frymaster]

moderator alerts

I assume a system where users can report comments as abusive, and moderators then review only those specific comments, is still safe? (assuming no reviewed comments are still infringing after review)

[Francis Davey 1]

moderator alerts are safe - that's right

That's quite right. If you post-moderate only those comments or posts alerted to you then provided you do remove defamatory material you are not liable for what you miss.

Struan is quite right about this (no surprises there) this is a well known problem with the e-commerce directive.

[SuperTim]

semantics surely!

Even if he had directly said that the arrest was on suspicion of membership, the full reason for the arrest is pretty much that. The inference is there, even though they claim that the person in question was only seen near Bader-Meinhof warehouses, that does suggest that the person was involved. I cant really see this winning no matter what, but why would a moderator correct spelling? Seems more work that is needed.

Still, nice to clarify the situation. I shall understand why there are lots of poorly spelt libellous claims in future.

[Anonymous Coward]

UK is doomed

Who would set up a web business here when you can be sued for libel at every turn. Free speech does not exist in the UK, the Govt and the courts have taken it away. Lets hope Cameron brings in a law similar to the US.

[Anonymous Coward]

Not quite

I think in this particular case, Kaschke has a good point.

She was detained and there is an implication that it was in respect to the investigation of that illegal organization. But the comment went too far in terms of bending the truth.

A similar situation might exist where someone was raped, and all the local males in the area were invited to give samples "to remove them from the investigation". One might claim that one of those individuals was "suspected by the police of rape" on those grounds. While not untrue, it would be a deliberate smear and intended to give an impression different from what was actually the case.

As for this particular case of a blog comments section being passed off as something more akin to Facebook I think it is stretching the intent of the law a little thin. It is an interesting argument though.

[Gilbert Wham]

Say what, now?

"Lets hope Cameron brings in a law similar to the US."

You are joking, right? Right? Please tell me you're joking...

[Ihre Papiere Bitte!!]

@ Gilbert Wham

It had the word "Cameron" in it. Of course it's a joke....

(*disclaimer: as far as I'm concerned, it would be equally a joke if it included either of the other two clowns.)

[Anonymous Coward]

Bloody hell.

I'd not heard about this case before, so I did a bit of Googling. Johanna Kaschke appears to be a former member of the Labour party, who then joined George Galloway's Respect party, and finally ended up as a Conservative party activist. She also appears to be the child of well to do parents, and became some sort of political activist with Marxist affiliations in West Germany back in the 1970s.

Sounds like some of the plonkers I went to university with - upper class twits into Marxism and flogging copies of the Socialist Worker rag, who ended up working at their dad's city firm when they graduated.

Posted anonymously, because this woman seems to like the UK libel laws ...

[Anonymous Coward]

B- hell indeed

You sound like a typical extremist or bigot, right or left, fascist or communist, who condemns people because of their parentage, nationality, "class" or sheer envy.

So, let's have show trials for such people. She can not possibly be innocent or entitled to fairness, any more than the "plonkers" you envied so much at "university". Of course, you never change your mind, make mistakes, grow up or regress! Intolerance rules OK! Plonker!

The real point: why should simply claiming one is merely a publisher, ISP or whatever excuse one from blame for spreading misinformation and damaging statements of a libellous nature? Once these things are "published" electronically, they can not be erased from the reader's mind and the damage to an innocent person or firm can be irremediable and deeply harmful, while the publisher sits back, living off the advertising revenue or simply stroking his ego. While misuse of the libel law or any other law is deplorable, the principle of protection for the individual from harm through the publication of baseless or false statements must be right. The freedom to libel others is no more freedom than the freedom to steal, defraud or murder. In extreme cases it can be as dangerous for the victim, e.g. baseless libel that someone is a paedophile leading to attacks on that person, loss of career etc.. Indeed, in this case, destruction of the victim's career seems to have been the overt object, if the Register report is accurate and in these intolerant days, there is the real risk of someone deciding to threaten the victim physically. Is n't that why you and I have both chosen to be "anonymous"?

Catch up with the electronic age: information over the internet differs from other forms only in the speed, ease and spread of distribution, not in its meaning or effect. Indeed, it could be argued that the responsibility of the publisher is even greater as detrimental effects become more widespread and spread faster, damaging somebody's reputation or career internationally and not just locally or even nationally.

[Anonymous Coward]

Erm...

TLDR!!

[Anonymous Coward]

Envy? Not much thanks.

For what it's worth, I came from a pretty well to do background - just like the SWP supporting plonkers. Perhaps it was because I was studying 20th century European politics that made me more aware of how hypocritical and potentially dangerous the wannabe Trots were. After all, most of the genocidal lunatics from either end of the political spectrum came from relatively well off backgrounds, and many flitted between the two extremes. No wonder one of my lecturers asserted that political allegiance - left or right - is more like a point on the circumference of a circle than on a straight line.

[Anonymous Coward]

letters and/or digits

"No wonder one of my lecturers asserted that political allegiance - left or right - is more like a point on the circumference of a circle than on a straight line."

deep

[Mike Flugennock]

I resemble that remark... (;^>

I was lucky enough to be born into a suburban middle-class family, to parents who could afford to send me off to art school for four years to prepare me for a "respectable" career in design, illustration and magazine/newspaper work at which I make pretty decent money. I also became involved in "leftist" activism almost as soon as I was old enough to figure out what the hell was going on.

So, does my upstanding suburban middle-class upbringing somehow disqualify me from working with groups advocating for labor rights, housing rights, peace, nuclear disarmament, environmental issues?

I like to remind people who bitch about this that people like Abbie Hoffman and Che Guevara came from upright middle-class backgrounds -- and, in Guevara's case, a family from upper-class "fallen aristocracy".

Like you, though, I did run into more than my share of faux-radical types in college who, upon graduation, promptly dropped out of everything to "get a haircut and a job." They always bugged the shit out of me. I mean, if you're not going to go whole-hog, why go at all?

[Anonymous Coward]

Post-moderation removal: catch-22

If removal of posts from a forum leaves the blog open to legal action, then removing an allegedly libelous post deprives the blog of protection: catch-22?

[Thomas 18]

actually no:

It says that information providers are exempt as long as:

1) they do not manually monitor/view/edit the material

2) they remove any illegal material as soon as notified.

So removing illegal material is specifically required but "moderation" is specifically forbidden. So user contributed content should only be viewed if you are alerted that it is illegal (probably with some associated paperwork). Even better, just do what search providers do and remove it without even looking at it, they are so spineless.

[James 139]

so..

this means that anyone posting an article must do so and "abandon" it, as coming back to "join in any following user contributions" means they may have viewed other posts which they would then be obliged to moderate or report if they are unable to moderate themselves.

But you can only remove unsuitable posts if you know they are unsuitable, surely?

Which leaves, as you say, the target of any illegal content in the position of notifying someone, which is as it should be. Dont know why governments, courts and people have such trouble understanding things.

A simple step-by-step guide

1) discover someone has defamed/libeled you

2) request the offending material is removed

3) get on with whatever you should be doing

4) check it has been removed, if not go to court

sadly, 2 and 3 keep being missed out.

[heyrick]

monitor/view/edit?

There is a big difference here. After all, how many people with blogs (etc) *view* their comments? Isn't that pretty much the point, to collect other people's opinions? There's no good asking if you won't read... And *viewing* a comment is a far cry from *editing* said comment. Viewing and moderating are not even in the same ballpark.

You would have thought libel laws would want to encourage people to be responsible and remove material reported to them, but people can be pretty apathetic (look at some comments on YouTube) so it is often a good idea to read comments yourself and nuke the ones that seem dodgy.

But no, this law looks like it actually prefers a web where people can spew crap, the site owner does *NOT* read or moderate, and only takes down problem comments IF somebody else points it out. Wow, that's smart.

[Luther Blissett]

Hmmmm

Damned if you publish a libel, and damned if you edit one out but let another slip by unnoticed. If the law is an ass, it could more properly be termed the Curate's ass.

[Disco-Legend-Zeke]

Does This Mean...

...that our beloved Moderatrix might face unemployment?

[Christoph]

Interesting distinction

If I've got this right: he can remove a comment if someone else objects to it, but he cannot remove a comment if he himself objects to it (even if his grounds for objection are identical)?

And suppose he remarks to someone else that he doesn't like a particular post, and that person then agrees and asks him to remove it? Does that count as him editing?

If he's made that remark where anyone else could read his comment, would that mean he could *never* remove the post because the person objecting might have first seen his comment?

Field day for lawyers there.

[Mike Powers]

Actually, I think this sounds reasonable

If you moderate posts--even retroactively--then it means you're setting yourself up as a gatekeeper. If a post is on your site, then it has your implicit approval, because if you didn't like the post then you'd delete or edit it.

If you claim that you can't possibly keep up with the volume of posts, then I'd say that means you need to get better at moderating.

[Mark 65]

Wrong!

It is totally unreasonable. What it actually means is that if you pre-moderate posts (like El Reg) and do not allow one to appear then you believe it to be problematic under the regulation. Any that you let through you do not *** believe *** to be problematic. There's no implicit approval or disapproval of the content you just do not think it to be problematic under the regulation. The fact that you are an ordinary member of the public and not a legal expert is quite pertinent. If you are then alerted that it is libelous/defamatory and remove it there should be no problems. Refuse and you're on your own.

The law is a total ass in this case.

[Steven Jones]

unusual allegiances

Johanna Kaschke is a woman who has followed a decidedly unusual path of political allegiance having, in a fairly short period of time, apparently put herself forward for the Labour candidacy for Bethnall Green, joined the Respect Party and now is a Conservative. I believe these are all documented (I'll leave it up to others to argue if claimed membership of any - or all - of the above would be defamatory).

It is what might be called and odd case, and life would be so much easier if there was a simple and cheap compulsory arbitration system which could make recommendations for simple corrective measures for minor issue (like grovelling apologies, rights of reply, clarification or simple dismissal of complaint). Only if there were really serious matters of defamation or damage inflicted would a recommendation to proceed to court be made. The tribunal could also take into account the relative economic power of the complainant and defender to avoid disproportionate economic effects.

If the plaintiff decides to proceed against the tribunal recommendation, then the court would have to take this into account (so that they would not normally award costs against the defendant, even if he/she lost). However, should the defendant not comply with the tribunal recommendations (if so required), then it could go to court in the normal way under the normal rules.

Hopefully the vast majority of things like this could be sorted out with relatively little costs to all concerned. although no doubt the lawyers would not like it. It's possible to imagine other approaches - the libel equivalent of a small claims court with strictly limited caps on costs and awards, which would sort out the minor infractions from the major ones (and the latter dealt with as now).

The problem is not so much the issue of establishing of whether a libel has been committed or not, but the utterly disproportionate impact of costs against any damage caused and the vulnerability of the economically weak from the powerful.

[Rabbers]

Automated Complaints may not work either

Frymaster assumes that automated complaints as sent by forum users would still be allowable, but it appears to me that if a forum is frequented by associates of a company or group, in such a way that they can be said to be closely associated with the webmaster that has ultimate authority, then somebody within the company or group could still damage the protection described in the article.

I would imagine that this could be pretty likely if the Webmaster's boss made a complaint to the webmaster about the content of the forum, where it could be assumed that the boss has then destroyed the protection from this article 19 thingy, because the boss has in effect caused the company to post-vet the forum.

So we appear to have ended up with a completely absurd situation in which any user that has a vested interest in the correctness and visual appeal of a web forum (who only reads content on an adhoc basis) could completely remove any legal protection that the company has by spotting a spelling mistake and reporting it to the webmaster that he pays to make these changes!

Have I got that right?

Obviously, completely anonymous complaints are the answer, but I would imagine that audit trails on user generated content (including complaints) will have to become law to ensure that all that troublesome forensic evidence exists.

Imagine the trouble in future:

Boss: "That subject line on the home page literally says we're a bunch of tossers, get it shifted!"

Webmaster: "As soon as somebody that isn't associated with our company complains about it, we'll be able to remove it."

Boss: "Can we remove the latest blogs feature from the home page then?"

Webmaster: "Only if you can prove that you're not doing it because the forum says that we are tossers!"

[John Lilburne]

Only

I've come across this before and the judiciaries interpretation of it. Normally the word is taken at its strictest sense. For example the old Rates Act (prior to the Community Charge/Council tax) had an exemption for agricultural use the Act "for the purposes of agricultural use only" case history should that if the landowner allowed any other activity on the land, for example point to point races on one weekend a year, then the exemption could not be claimed.

[Anonymous Coward]

Let me get this straight

A website owner who sees a potentially libelous claim and takes it down before anyone complains about it, loses his Regulation 19 protection, but if he leaves it there for everyone to see, he can claim an exemption?

And the judge doesn't think that this is an issue that's worthy of addressing?

And judges wonder why people don't hold the law in high regard

[Trevor Pott o_O]

More work for the moderatrix...

[Group] are all a bunch of [slur]. They are [slur], [slur], [slur] and then even more they [slur]! I caught [member of group] [something taboo] with [member of another group]! Down with this sort of thing! We should all [something obviously in violation of the UDHR] to rid ourselves of these [slur] [group].

Furthermore, how /dare/ the government attempt to censor my right to tell the truth about [group] on whatever page I wish! If they don’t wish to read the truth about the [slur], [slur], [slur] [group] then they should just close their eyes! It doesn’t matter if the page is moderated! Sarah will [something obviously in violation of the UDHR] if they try to tell her how to do her job anyways.

This is all [epithet]. I demand that this law be repealed, and will [something obviously in violation of the UDHR] a [member of group] every day until this law is repealed. They can’t stamp on my rights!

[Saul Dobney]

Blog-spammers charter

Does this mean you can't clean our spam entries from comments sections without then falling foul of Chapter 19?

[Henry Wertz 1]

Post ranking instead?

Slashdot approach? I wonder how that would work with these rules --- 1) It is not moderated by the site owner or anyone involved by the site. Users rank posts. 2) No posts are removed, but posts lower than rank 1 for instance do not show up unless the user requests to see them. So, the same general effect as though someone was moderating, without the legal problems that arise from it. This may not address article 19 if it requests deletion of illegal posts though.

[Yet Another Anonymous coward]

@Let me get this straight

Better than that - somebody posts something illegal or a link to something illegal, like the 2010

logo cartoon

If you remove it, you are liable

If you leave it you are in trouble

If you click on the link to check if it's illegal you go to jail.

[Anonymous Coward]

Oh dear.

Before I read this story, I had thought to make a few allegations, for example, of London libel firm Carter Ruck & Co being a front organisation for the Real BNP; and of Scientology being an inherently fraudulent cynical money-hoovering con-artist wacko sect; or of all of Max Clifford's clients being of different sexual orientation to that claimed; however it looks now that won't be possible. Oh well.

[Mike Powers]

Oh, come ON

Lots of comments saying: "waaah, what if someone posts something libelous!"

Well, if you're worried about that then MAAAAAY-be you shouldn't allow unrestricted anonymous commenting on your site!

[Anonymous Coward]

Oh shitze !

No more need for selective moderation of Reg comments that don't agree with the mods distorted view of reality.

[Trevor Pott o_O]

um...what?

Even on their worst days, I don't think the mods at The Register would block comments "because they don't agree with them." Because they contain hate speech, libel, etc I could believe. Honestly though, I think they pretty much let through anything that they feel won't get The Register in legal trouble.

The above statement is made with the caveat that there is some understanding by all players involved that the people moderating the comments are /human beings/. Some times they have a bad day, and might be a little harsher in their judgements. Others perhaps they are distracted, or there is simply an overwhelming volume. There has been, in all the many years I’ve been a reader here absolutely zero indication of them cherry picking comments such that only ones they “agree with” get posted.

I myself have personally lobbed a few trollballs into the fray that have gotten our dear Moderatrix a more than a trifle irritated, as have many, many others. These comments still get posted; although they may draw some ire in the form of a Moderatrix e-spanking.

If you think that your comments are being rejected unfairly; why not man up and ask Sarah directly? (Note that she’s not the only mod around here; just the most talkative one.) I think that you would find the staff at El Reg (mostly) decent folk who would be willing to engage you on your issues and try their best to make sure your commentard experience is as acceptable as possible.

Assuming of course you approach such a discussion semi-humanely. A stream of vitriol directed at the mods because you didn’t get a comment posted would probably just end up as a FOTW.

YMMV, and good luck…

[Anonymous Coward]

Re: um...what?

I agree fully however

>If you think that your comments are being rejected unfairly; why not man up and ask Sarah directly?

Tried that, didn't get a reply. In a different comment thread I was informed that moderators don't have to give reasons.

As you say YMMV

[Ihre Papiere Bitte!!]

To be fair to the Moderatrix...

(And I wouldn't dare do otherwise!)

The mods on El Reg are incredibly liberal with what they allow through.

One post I made got, not rejected but.... "delayed" whilst Sarah asked the legal team about it (it was quite damning of a particular organisation, and included details). She had the courtesy and good grace to contact me and tell me that this was the case, which was very much appreciated - most moderators would have simply rejected it and not said why (in the end it was allowed through).

On the other hand, on 01/04, I had my first 2 posts rejected, and I had no idea why. They weren't offensive or controversial. I mailed asking why, as I was wondering if I'd pissed someone off. I didn't get a reply to that one - but other posts I made later in the day were accepted, and, crucially, when I posted about the new Reg Comments thing, falling hook line & sinker, that was accepted. I reckon it's because they were in reply to April 1st Fool posts, and were a little too early to blow the game open - I know other people had posts rejected for that reason (or at least that's what they believe)

Moderators don't need to give a reason for rejection. And remember that the Moderatrix in particular is no doubt inundated with mail DEMANDING to know why their post about Gordon Brown "obviously having syphilis, it's the only explanation for his behaviour and appearance, plus he's a cunt that was begotten by a pox-ridden whore" that's posted by "T_Blair" in response to an article on Google, was rejected. And she has better things to do than wade through that.

Like tea and biscuits *ducks*

[Sarah Bee]

Re: To be fair to the Moderatrix...

Tea and biscuits and ducks?

The things is that moderating is not my primary function here - I'm a sub-editor. I don't have time to address each and every quibble, and if I have any doubt or find a post just objectionable enough then I'll reject and move on to the next lot. That's how it has to be. I'm glad so many of you understand this and deal with it and realise that there's no divine right to have your bletherings published - here, or anywhere.

I think the system works pretty well, overall. Some people are always going to be unhappy, but then some people are only happy when they're unhappy, innit.

[Stuart 18]

Ms. Bee you owe me

I'm a poet and I know it:-)

I formally object to every post in this commentary as being unfounded politically objectionable and a slur on my character.

O.K. Sarah one get out of jail free card signed, sealed, delivered.

Yours Stu

[Anonymous Coward]

Yet another reason to reform libel law

See http://www.libelreform.org/

[Adrian Esdaile]

No, no it's actually a GOOD thing!

You can say what you want about someone, just use atrocious spelling & grammar.

"No M'lud, I was saying that 'Orl jujez are twonkerz' which m'lud will see is clearly completely different to 'All Judges Are Wankers' "

No libel at all there!

[ChrisInAStrangeLand]

Remove the post when asked next time.

Alex Hilton got what was coming to him for not deleting libelous material when politely asked. Hilton probably fired off some pious and highly offensive five page diatribe about his article 10 rights.

[Anonymous Coward]

So would this get you into trouble if your fixed it?

Grodon Bwron cuoldn't biol an gge!

[Anonymous Coward]

@ um... what?

Trevor- History shows a much different picture than what you write. ;) Sarah already knows her personal issues.

[Sarah Bee]

Re: @ um... what?

Man, I can't wait until robots take over and none of this will be my concern.

[Etrien Dautre]

@ Sarah Bee 9 0947 - a personal view

O Sarah Bee, robots have taken care about IT already, the High Court. I'm nearly to believe that it's the comments' moderators who have a much stronger grasp at the wheel rather than does any other position in Reg's office. 4x, mepersonally begins my reading mostly not from the article, as I sometimes appear to be briefly aware of its idea, but from the comments.

I suppose, any reader who's into online affairs might hazard a guess what the premoderation is _here_ for, and so do I, and I wish theregister.co.uk a long prosperity. With its bright and clear-conscious [most] contributors and commenters lasting long and promising a stable well future, bringing the [whatever good] into the [whatever the appreciative audience is], Reg's got to be Yearrrs in any business.

73 with respect, which does already mean 73.

[Trevor Pott o_O]

Er...

Dude, I have told people this before and apparently I have to say it again: amanfromMars is not to be smoked! Seriously, gateway drug to insanity...

[Trevor Pott o_O]

It could be worse.

Don't complain too loudly. They could hire amfM to not only moderate comments, but check them for spelling and grammar.

Or worse yet for you; *I* could be moderating comments. There’d be far fewer, and they’d be much less offensive. If Sarah “the gentle touch Moderatrix” Bee doesn’t let your comments through, I can almost guarantee that you’d have a tougher time with someone like me. I’m a vicious forum mod. While I don’t moderate comments “I don’t agree with,” I simply don’t let ad hom attacks through, which tends to decimate about 80% of all posts on the internet.

And I keep black lists.

So it makes me question what your comments are like that get rejected though. I mean, the crap that gets let through makes me realise that to be rejected, it's gotta be pretty out there.

You were suspected of a crime; you must be guilty of /something/.

Oh, yes, that is my coat and I thn AUUUUUGH NOT THE FRYING PAN AGAIN.

*thud*

[ShaggyDoggy]

Re: Rabbers

"Webmaster: "As soon as somebody that isn't associated with our company complains about it, we'll be able to remove it.""

no problem, change the font to same colour as the background, until you get the complaint, which can be done by signing in as another user later that day

[amanfromMars 1]

Yin and Yang taking some Air and a Walk Together

"Mr Justice Stadlen was unconvinced but declined to answer the point." .... Hmmmm, can we then settle for His Worship being temporarily discombobulated

""This latter argument does not seem to me well-founded," said Mr Justice Stadlen. "It fails to distinguish between material which is offensive and material which is unlawful such as to give rise to liability for storing it."

Actually I was thinking the exact opposite, finding it most convincing.

And what a nice gravy train it is ...... splitting hairs over shared words but whenever they start wars for thirty pieces of silver and fool's gold talking shop circuits, are they always worth understanding to the nth degree, and certainly beyond any petty 33rd for 42nd foresight. whether they be offensive and/or unlawful will always end up be a court case whenever a legitimate complaint is not heeded and treated "properly" ...... but surely there are usually a number of opportunities presented to remedy those situations long before it needs the courts attention. Is that not the right dodgy dealing ways of horse trading and plea bargaining, where natural justice is dismissed for the convenience of artificial expediency.

<<<If you want to be sure that you're not liable for what your users say, the judge is basically saying you need to ignore user contributions completely until you get a complaint.

"That's not a new principle," said Robertson, "but it's a warning to site owners about how to interpret it. Some owners may think they have less responsibility for user comments than they really do, and they may wrongly assume that a post-moderation policy is completely safe.">>>

I imagine most site owners would welcome the clarification which allows for third party posting without pre-moderation/blanket subjective vetting of contributions, as will contributors too, I'd guess.

[Carrierbag Head]

So...

So does this mean I can say David Cameron f*cks goats, and the Reg won't get sued unless it's complained about and they don't remove it?

I'll say it anyway. David Cameron f*cks goats, George Osbourne watches and tapes it. Dirty, Tory bastids!

Let's see how long this lasts....