Legal Research

Moderating Comments and Liability

By Simon Fodden

A recent judgment of the England and Wales High Court, Kaschke v Gray & Anor [2010] EWHC 690 (QB), dealt with a potential libel that occurred in a post on a blog, Labourhome.org, that opens its facilities to “Labour grassroots” to “discuss the issues important to them.” As OutLaw.com, which has the story, says

Hilton claimed in his defence against the libel charge that, though he ran the site, he did not edit or vet the articles and should qualify for the same safe harbour that was granted to search engines or ISPs.

That safe harbour is granted under EC legislation.

The judge said Mr Hilton’s involvement, even minimal, could forfeit the protection of the legislation:

Mr Hilton stated in terms that where a blog is promoted by him he may check the piece for spelling and grammar and make corrections. That in my view arguably goes beyond mere storage of information . . . The fact that Mr Hilton on a few occasions removed blog posts on grounds of bad language, political provocation or offensiveness falling short of defamation again in my view makes it at least arguable that the service provided in respect of those individual blog posts and also in respect of the general service consisting of making available webpages on his website for such blogs to be posted consisted of more than mere storage.

This case has no direct applicability to the Canadian situation, of course. But it does cause blog owners to wonder about potential liability for material in comments, where those comments are moderated. If “moderation” means vetting and approval, it seems fairly obvious that the blog owner has published the material and might therefore be liable. A number of questions arise, however: what would be the liability where some comments are moderated and some are not, as is the case on Slaw, where once you’ve had an approved comment, your further comments bypass moderation? Would a blog publisher here, as has been suggested in England following Kaschke, be better off avoiding moderation altogether and only responding to complaints made after publication?

Full post as published by Slaw.ca on April 12, 2010 (boomark / email).