Legal liability for forum comments (was Re: [LINK] The future of Link)

[Stilgherrian]

Craig Sanders wrote:
> actually, no. precedent has been established several times that when
> it comes to exercising editorial control, inaction is far safer than
> partial action.
> 
> once you begin to edit what is posted, you then become liable for
> whatever you DON'T edit - by failing to remove a post, you implicitly
> endorse it; whereas if your policy and practice is that your forum is
> unedited and unmoderated, you have an excellent case for claiming that
> you are not liable, you aren't endorsing anything.
> 
> the safest course is to do exactly what LINK have been doing all along:
> disclaim all editorial control, and even refuse to delete anything
> from the archives for any reason without a court order or other legal
> instruction which can not just be ignored.


And "Sam Stainsby" <sam at stainsby.id.au> then asked:
> My knowledge was gained from professional legal advice given to the
> political party I was doing volunteer work for. Are you referring to
> Australian law? I would be very interested to learn of your sources, as
> it affects my current work (and could make it a lot easier!). Also,
> since the "policy and practice" is not written down, that might also be
> slightly problematic - probably not for experienced users of the forum
> though.

While I can't provide references (bother!), I can confirm Craig's point
anecdotally. I too am not a lawyer, but this was explained to me by an
appropriate lawyer about 10 years ago.

(Yes, 10 years ago is a long time, but AFAIK the situation hasn't changed in
any substantial way.)

This issue came up when I was working for a subsidiary of the Fairfax media
empire during the dot.com boom. We were creating an online forum where the
majority of participants would be under 18. The issue was all about whether
the material being posted was "suitable for minors".

The lawyer explained that if we moderated the forum and said it was
"suitable for minors", then we could be sued if something inappropriate
snuck through. By moderating, we were "editing" the content and thereby took
on the role of a publisher. However, by NOT moderating, we were not editing,
and were in a stronger position to say that we had no responsibility for the
content.

My understanding is that this situation has been clarified somewhat, with
the law differentiating between material which is "published" (like the
content of a website), and that which is "ephemeral" (like live chat). But I
have no idea how that applies to an email-based forum which is then
archived.

HTH,

Stil


-- 
Stilgherrian <stil at stilgherrian.com>
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