Eric Goldman at the Technology & Marketing Blog writes about an interesting case involving Section 230 of the Communications Decency Act and comment moderators. The case held that website owners are liable for the defamatory postings of their moderators. Mr. Goldman believes this is a mistake, but I’m not so sure. Before I talk about this case, I would like to take a minute to discuss the reasons for Section 230 and what exactly moderators are.

     Section 230 was passed in response to a New York court case, Stratton Oakmont, Inc. v. Prodigy Services Co., that held that websites that tried to moderate comments were liable for the defamation of any of the comments posted. The court used a book publisher/library analogy and applied it to the Internet. They were then able to use existing defamation law to hold that if a website does takes some active effort in moderating its messages, then it is like a publishing editor and therefore liable for any defamatory material. The problem with this holding is obvious. Why would anyone make the effort to moderate any material if they would become liable for everything? This would only lead to an increase in defamation on the Internet and prevent websites from using moderators to keep discussions both on topic and civil. Section 230 allows websites to be proactive in moderating content without exposing themselves to liability.

     So what are moderators? Moderators, in the context of the Internet, are people selected by the site owner to patrol the message boards. They have the power to delete, modify, and relocate other members’ postings. Basically, they have the same powers as the site owner as it relates to the board. They also usually have the word ‘Moderator’ under their name whenever they post to signify that he has been selected by the site owner to help control the board.

     I told you all of that to tell you this: Mr. Goldman believes that the court is wrong in applying an agency theory to this type of situation and that doing so will cause site owners to forgo having moderators and administrators so as to not expose themselves to liability. First, Mr. Goldman tries to define the moderators as independent contractors, while the court defines them as agents (the site owner would be liable if they are agents, not liable if they are independent contractors). I may have to agree with the court on this one. Every time a moderator posts to the message board, the other users can see that he is a moderator for the site and they know that he is acting on behalf of the site’s owner. This display distinguishes him from that of an independent contractor. Mr. Goldman also tries to paint this case as an outlier. Of the cases he linked to though, only two had facts similar to the present case. The first case, Higher Balance, LLC v. Quantum Future Group, Inc., didn’t actually hold that moderators weren’t agents, it just held that the plaintiff didn’t present enough evidence to support that theory. The second case, Columbia Pictures Industries, Inc., v. Fung, held that moderators were agents (he didn’t agree with this case either). Based upon these findings, I don’t think this ruling is an outlier. To be sure though, the differences between an independent contractor and an agent are sometimes very difficult to determine and hinge on the specific facts of the case. But would a holding that moderators are agents cause site owners to abandon third-party moderation?

     The whole point of Section 230 is to encourage site owners to moderate and filter user generated content without fear of becoming liable for the content if they missed something. It wasn’t intended to protect owners if their moderators were the ones doing the defamatory posting. And this ruling will not stop site owners from using moderators. Moderators add value to message boards. Unmoderated boards are full of off-topic posts and spam. Without moderators, most people wouldn’t visit the message board, thus depriving the owner of the money generated by the site. Most moderators are picked because of their ability to keep a post on topic and keep trolls and spam out. I don’t think site owners are going to give up making money based on the fear that one of their moderators will post defamatory comments, especially given the fact that they were picked as moderators for their ability to filter comments that might give rise to liability.

     While I disagree with Mr. Goldman on whether moderators are agents or independent contractors, I most definitely agree with him about the best part of the case. Apparently, the alleged defamatory comments involved calling the plaintiff “Cornholio.” This led to a court discussion regarding whether or not calling someone “Cornholio” is defamatory. Better yet, Mr. Goldman found that this is not the first time the courts have had a discussion about “Cornholio”. He cites another case, State v. Lane, that also contained a discussion of “Cornholio.” In fact, the main reason I wrote about his post was so I could use a Beavis and Butthead reference in my title.

Stephen Burch

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