“Don’t moderate comments” message from High Court

According to Out-Law, Alex Hilton, who runs Labourhome.org, has failed to get a libel case brought against him by Johanna Kaschke over a post written about her by contributor John Gray thrown out by the High Court. Hilton argued that he had no control over Gray’s post and that he should enjoy the same ‘safe harbour’ protection afforded to companies like ISPs or search engines who are not responsible for the content that flows over their networks.

But the High Court ruled that, because Hilton did sometimes exercise editorial control over parts of his site, that his case needed to be heard by a court to fully examine the issue.

Mr Justice Stadlen said that even to fix the spelling in a post could cost the host the protection of Regulation 19 [safe harbour].

“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,” he wrote.

This should concern anyone who runs a blog or other site where users can add content, especially if they moderate contributions, even if just to fix the spelling or filter for spam.

Struan Robertson, a technology lawyer with Pinsent Masons, who publish OUT-LAW.COM, said:

“Even an attempt to filter for profanities or comment spam, if done manually, involves a risk for the publisher. 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.”

The impact of this ruling on high-volume comment sites and short-term high-volume projects such as a user-lead mash-up advertising campaign, could be huge. It may be that, once this case is heard fully, such sites would have to decide between full moderation and the huge financial costs that incurs, or no moderation at all and the cost in reputation that comes from leaving spam and offensive comments up until someone complains about them. Hm, which do we fancy? Scylla or Charybdis?