The answer depends on how much you touch the comments. The Communications Decency Act (CDA) protects “interactive computer services” from civil liability (for example, for defamation or invasion of privacy) for postings made by third parties. So, if you are passively transmitting reader comments on your website, you won’t be responsible for their content.
The definition of an interactive computer service (ICS) is broad and courts have interpreted it to cover internet service providers, listservs, websites that allow reader comments, websites that host bloggers, and websites that re-post information. These services have immunity if they are sued for content that appears on their website, so long as the content was authored by a third party.
The authors themselves remain liable for the content of their posts, even if the host website is protected. Moreover, a website or blog owner is still responsible for her own comments. Therefore, if you add to a comment written by a third party, you can be liable for your own statements, but not the original content posted by the user.
Website or blog owners may perform traditional editorial functions, such as editing for accuracy, without giving up protection under the statute. However, the owner must not substantially alter the meaning of the original statement.
Therefore, you have a good chance of being immune if (1) you are operating a website that hosts content created by others, (2) the content you want to edit has been created by a third party, (3) your changes serve a traditional editorial function, and (4) your alterations do not materially contribute to the problematic nature of the content.
What are traditional editorial functions?
The decision to publish, withdraw, postpone, or alter content provided by others is central to the editorial function. There are only a few New Jersey and Third Circuit cases on this topic; most courts have adopted the following principles.
Traditional editorial functions typically include:
- Screening content prior to publication.
- Correcting, editing, or removing content.
- Selecting content for publication.
- Soliciting or encouraging users to submit content.
- Paying a third party to create or submit content.
- Providing forms or drop-downs to facilitate user submission of content.
- Leaving content up after you have been notified that the material is defamatory.
Editors will typically lose immunity if they:
- Edit content to materially alter its meaning.
- Engage with users, through drop-down forms, to create discriminatory content.
- Fail to comply with promises to remove material.
What is considered a material contribution?
Editors risk losing immunity if they co-author or develop content by adding to the substance of the posting. In addition, editors may be liable if they are responsible for what makes a third party’s posting problematic. In other words, an editor will not be liable if she merely provides instructions that are neutral, for example, “Tell us what’s happening. Remember to tell us who, what, when, where, why.” However, an editor will be liable if she pays users to post defamatory information or otherwise breach a duty to the subject of the post.
Immune from liability:
The defendant ran a website hosting third party comments criticizing local elected officials. The defendant regularly deleted offensive messages, provided guidelines for posting, edited postings to remove obscenities, and commented favorably or unfavorably on postings originally authored by a third party. The court held that his activities were editorial functions because he did not develop or change the substance of the messages. Donato v. Moldow, 374 N.J. Super. 475 (App. Div. 2005).
Jones sued Dirty World, LLC and its owner, Richie, when a third party posted comments about Jones on the www.TheDirty.com website. The comments referred to Jones’ sexual conduct and Richie replied “Why are all high school teachers freaks in the sack?” Richie was not liable because his comment did not materially contribute to the defamatory content of the original statement. Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398 (6th Cir. 2014).
Not immune from liability:
Roommates.com required that its users create a profile by filling out a drop down menu. The defendant was not immune from liability because it was responsible for creating discriminatory drop down menus (e.g., users made selections indicating a preference for male or female roommates). Fair Housing Council of San Fernando Valley v. Rommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).
Accusearch paid third party researchers to acquire confidential telephone records and it operated a website that sold the information to individuals. The company was liable because it was responsible for the unlawful conduct of the researchers when it paid them to retrieve records that were protected by law. F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009).
Updated October 2015