(Important note: I am not a lawyer. Nothing on this site, including this post, constitutes legal advice. Everything in this post may be completely inaccurate; in fact, you should assume that it is. Always consult a qualified attorney for legal guidance.)
There is a long-standing (and incorrect) Internet Urban Legend that has spent well over a decade misleading people who should know better. The legend in question pertains to sites that contain user-submitted content, such as — for example — PennLive. The legend goes something like this:
“If you edit, delete, or otherwise modify user-submitted content, you become responsible for said content and any legal ramifications it brings.”
This wildly-inaccurate assumption is regularly dispensed by Armchair Internet Lawyers and dime-a-dozen consultants. And it needs to die.
For context, the Clinton administration passed a very evil piece of legislation in 1996 called the Communications Decency Act. Like so many laws, it was well-meaning in spirit but outright oppressive in its approach. It was a knee-jerk reaction to some senator discovering that the Internet has offensive content. To make a very complex issue very simple, it effectively held everybody responsible for any content that passed through their grasp. If the CDA were still in full effect, any offended reader would be able to hold any given news site liable for any offensive third-party user comments, just as if the news site had written them itself. The consequences would be staggering.
Needless to say, the CDA was a ridiculous law that was torn to shreds almost immediately after its passage. But one critical section remained. Section 230 of the CDA actually establishes immunity to content providers. This is why sites can allow users to submit content (sometimes anonymously) without fear of prosecution. Yet somewhere along the line, some Armchair Internet Lawyer ™ decided that Section 230 contained a footnote waiving all protection if the content publisher edited the content itself.
Curiously, the law — and subsequent caselaw — says no such thing. In fact, courts have repeatedly explicitly stated the opposite.
One of the simplest-to-understand cases involving Section 230 is Zeran v America Online. There are mountains of interpretations available online, but the court’s decision is crystal clear on its own (emphasis mine):
The relevant portion of § 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).2 By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, §230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.
Put simply, the Court of Appeals for the Fourth Circuit upheld the notion that content publishers are free to exercise any editorial rights over user-submitted content as they might if they created the content themselves. It strengthens this by affirming that actions against any legal claims — in this case, a claim for damages resulting from alleged defamation — must be brought against the content creator and NOT the publisher, even if the publisher edited (or deleted, or even published) the content.
The distinction here is clear and important: The publisher can be held responsible for their own content, and a third-party creator (in this case, an anonymous user) can be held responsible for their own content, but neither party can be held responsible for the other’s content, regardless of any subsequent editing.
So what brought on today’s post?
The Patriot News’ website, PennLive.com, is a comic cacophony of trolling, racial slurs, bigotry, and other signs of civilized behavior. This is nothing new; it’s the way it’s been for a while.
If the Patriot News wants to maintain this as their public-facing facade, then such is their right. Online distribution will be their future, and if this is the image that they prefer to maintain for themselves, then so be it. I understand that the newspaper industry is in its death throes, largely thanks to an ongoing resistance to adopt to changing times (see paywalls), and a paper’s gotta do what a paper’s gotta do. I personally think it undercuts any image of professionalism or journalistic integrity when that much of your site consists of trolling, but what do I know? I must admit that I’ve never been at the helm of a single failing newspaper website — not that PennLive is “failing”. Not one.
On the other hand, there are ways to effectively moderate your site’s content. Sites like Fark, Slashdot, Engadget, Something Awful, and even Digg — all of which pull more traffic than PennLive — use unpaid, community moderators to cancel out crappy content. The result is interesting (if not always upright) dialog. Sure, those sites still feature trolls and stupid arguments. But the instigators wind up getting whacked over the head with suspensions of posting privileges and/or bans so many times that the prospect of re-registering for every comment they post becomes enough incentive to drive them away. Fark even has a unique facet to troll-defusing in that freshly-registered accounts can’t post for the first 24 hours.
Now, PennLive and/or the Patriot News can make any argument against content moderation they want. They can argue that it’s their *right* to publish racial slurs (and it is). They can argue that they *like* publishing personal attacks (which they may). They can argue that there’s simply no way to effectively filter out content at this volume (which is entirely untrue; see the rest of the Internet). They can even argue that they just don’t care (which does, in fact, appear to be the case).
But then I’d just have to ask: Why even bother having a “Community Rules” section in the first place?
The Patriot News has slowly-but-surely been dragged kicking and screaming into the Internet age. Even PennLive has improved itself slightly over the past 18 months. But it’s still a stale print-and-deliver content delivery mentality (really — their latest innovation is, I swear I am not making this up, a video of a woman talking about upcoming stories). I get breaking news through Twitter and Facebook, then read about it a few days later in the paper. I could devote an entire site to how the newspaper industry will either modernize itself or continue dying off, but there are already plenty of those out there.
PennLive, moderate your content. Screen user comments before publication (honestly, there are scripts to do this; failing those, it takes one employee to handle your entire family of sites with a delay of only several minutes). And when users do report content, delete the content that’s actually offensive and in violation of your already-existing rules, and not just every report that comes in (I don’t know if you know this, but people will often report content that disagrees with their own worldview just because). Recruit your most active users as community moderators to police and maintain your user-fed areas. Score users so that users with oft-reported content are forced into a moderation pool, or go the other way — give users with over 100 posts and under 1% reported content a pass, and put everybody else in the pool. There are literally countless ways to do this, and the sites that have a handle on their content are the very sites who have been raiding your readers for the past decade.
To put it another way, catch up to where the rest of the Internet was ten years ago.
Or don’t. Journalists don’t die; newspapers do.