Can we edit our website’s online comments?

November 3, 2014

By Tonda F. Rush
Legal Standing 

Q The comments feature on our website has certainly brought out the crazies in the community. We thought we were inviting civil discussion, but instead we’re getting profanity and name-calling. We’re thinking of taking it down entirely, but we do want to encourage debate. Can we edit these so we don’t offend our readers?


A Publishers permitting public commentary on their websites benefit from the Communications Decency Act, which was passed as part of the 1996 Telecommunications Act. The CDA was part of a larger set of laws intended to protect children from indecency. Most of the Act was struck down by the Supreme Court, but Section 230, the CDA section, survived.

It essentially says that providers of Internet services cannot be construed as publishers when they allow third parties to post content on their sites.

This protection does not necessarily shield publishers from copyright infringements. Another set of laws governs obligations when a third-party wrongfully posts copyrighted material. But where questions of libel and privacy and other torts that might come from third party postings are concerned, the CDA offers wide protection. (Note: CDA does not apply when the content is created by the publisher’s own staff or freelancers.)

Legal scholars have discussed whether courts would forever respect the blanket protections of CDA, given that the print model would make the publisher liable if a letter to the editor defamed someone. But in a mad dash to protect the burgeoning online world, Congress did state the CDA restrictions pretty emphatically.

Now we have a case out of the Court of Appeals for the Ninth Circuit that may have finally pierced the Internet operator’s armor. That case allows action against an operator who allowed a purported modeling business to post messages to lure aspiring models to come in for auditions. When one applicant responded, she claims, she was drugged and raped and the Internet operators filmed the events for later sale as pornography. She claimed the Internet operator knew about this crime and others committed by the modeling agency. The Court held that the Internet operator failed in a duty to warn potential applicants that its client was engaged in criminal activity.

So now we have a clear-cut example to demonstrate that an Internet operator cannot simply allow any type of activity on a site and expect immunity.

Likely, most newspaper websites will not include such outrageous activity. But newspapers have been hesitant to tamper with third-party content because they know the law can turn them into publishers if they edit material enough to make it their own.

There is no reason, however, publishers cannot post and enforce certain codes of conduct on their sites. Putting readers on notice that profanity, name-calling and defamatory remarks will be deleted does not pierce the CDA protection. Now the 9th Circuit case has come into view to remind publishers that common sense still matters. If someone posts a comment or solicitation to your website that violates your standards or looks illegal or simply out of bounds, take it down.

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