Why Moderating Comments Doesn't Remove Section 230 Protection, And Why More Lawyers Need To Understand This

from the on-the-other-hand,-it-gives-us-plenty-to-write-about... dept

Here at Techdirt, we've covered a large number of bogus C&Ds. One thing many of them have in common (besides being vague about what they find actionable) is a misunderstanding of the Section 230 protections afforded to site owners. It seems as though that part of the law gets lost when aggrieved parties are offended by comments or forum posts.



And while it's fine for companies and individuals to be confused about who's ultimately responsible for allegedly defamatory posts, it's very definitely not OK when their legal representation makes the same mistake. As we covered recently, a financial blogger received a C&D from a trust company over a comment made by a forum member. The first letter completely avoided discussing Section 230 (but made room for trademark and copyright infringement somehow)... which was fine, seeing as it was written by the company's chairman. However, another letter, written by an actual law firm, acknowledged these protections but then made the claim that because the blogger had the power to moderate his forums, he was no longer protected by Section 230.



But that's completely wrong. And it's not just one lawyer. It's several of them. The first mistake is targeting a site owner for third party content. This is compounded when legal reps operate under the false impression that doing anything to comments and forum posts (deleting, editing, etc.) revokes Section 230 protection.



Marc Randazza ran into exactly this problem while attending an accredited CLE (continuing legal education) "Attorney At Blog" conference recently. (h/t to Scott Greenfield)

I want to clear up one bit of bullshit that seems to continue to walk the earth, sort of like a legal bullshit zombie. The bullshit is the notion that if I delete ANY comments on this blog, then I lose my Section 230 immunity.



This comes to mind because this Friday, I had the pleasure of speaking at the Attorney At Blog conference. During that conference, a very nice lady “informed” the audience that her blog would delete problematic comments, but they couldn’t, lest they lose Section 230′s protection.



I felt like a dick having to correct her. But, I can’t let a room full of people leave dumber than they came in. If you come to a place for CLE credit, the least you should do is learn something true, right? Shockingly, she defended her position by saying that it was based on the advice of her attorney. I advised her to fire that attorney immediately.

No provider or user of an interactive computer service shall be held liable on account of—



(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…

I do delete comments from time to time. If I notice them and they are “excessively violent” or “harassing” or “otherwise objectionable,” I delete them. Why? First, its my blog, so my fucking rules. You have a right to express yourself, but not necessarily here. Second, I have absolutely no doubt in my mind that I can delete one comment and leave 100 filthy, objectionable, harassing, defamatory, nasty, and brutish comments and still not be liable.

If you’re a Section 230 protected website operator and your lawyer has ever told you that you can’t act responsibly, lest you lose protection, then pick up your phone and dial his number (or her number, whatever). I presume you’ll get his voicemail. Leave this message “Hey, you’re either really stupid, or fucking dishonest. In either event, you’re fired, fucktard.”

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This is a very common -- and stupid -- misconception. Any site owner can moderate heavily, or not at all, and still be equally covered. The relevant part of the law is here:This means site owners are free to handle their comment threads as they see fit. Here's how Randazza puts it.I can understand why parties miffed about comments or forum posts might make the mistake of singling out site owners in their hurry to hold someone,responsible for their ruffled feathers and hurt feelings. But what's not excusable is legal representation making that same mistake for them. They're paid to know the applicable laws and if they're not clear on the subject, they should do a little research.And it's completely ridiculous that one attorney would regurgitate another attorney's assertion that moderating comment threads somehow makes site owners liable for the words, links, etc. of their readers.Those whose lawyers have encouraged sending bogus C&Dssite owners over third-party content need to take the same advice Randazza offers to site owners.I realize this protection is frustrating for everyone, from companies that can't take a little criticism to people who want their naked photos removed from revenge porn sites, but without it, the internet would be a barren, listless place. This culpability exception allows for a very vibrant web. If Reddit, Facebook, Twitter and millions of others were responsible for the content posted by their users, they would never have come into existence. Or they would have been sued off the face of the internet years ago.This may seem like an unhealthy state of affairs for those currently aggrieved, but when you take into account the fact that a vast majority of internet users are generating billions of pieces of third-party contentwithout defaming someone (or posting their ex's photo stash), you may finally appreciate why this protection is essential. Imagine the web as a top-down distribution system, more akin to a newspaper or TV station, and you're on the right (and very depressing) track.Ultimately, the problem is with the lawyers who don't understand the law they're quoting. Site owners can be easily cowed by ignorant splashes of legalese on law firm letterhead, and for some lawyers, that's just as good as actually understanding the law -- if it has the desired effect. But people aren't paying legal reps to misunderstand the law for them. That's something they can do on their own. And when an attorney spews stupidity -- and cites another attorney's stupidity to back it up, that can't be addressed fast enough. Knowledge should be spread. There's no need to spread stupidity. It's not like the world is lacking.

Filed Under: lawyers, safe harbors, section 230