Last year, we wrote about a rather straightforward case where a nutritional supplement company had sued the operators of the forum bodybuilding.com, because of some unflattering comments posted in the forum. The court quickly tossed out the case on Section 230 grounds, noting that a site is not liable for the actions of its commenters. However, Eric Goldman alerts us to the latest in that case, which is a bit more troubling. After having the case transferred to a different court, the supplement maker used a new argument, claiming that it was false advertising and that since a third-party “moderator” posted one of the messages, the site is now responsible. That’s basically how the company tried to get around Section 230.
The court, unfortunately, seems to have agreed. While it does note that bodybuilding.com has Section 230 immunity despite having third party moderators, it allows for the possibility that since one of the moderators may have posted one of the messages in question, the moderator could be considered “a representative of the site.” This goes against a whole series of case law, which Goldman lists in his post, and could create all sorts of problems for sites that use volunteer or third party moderators. Of course, this was just in response to the motion to dismiss, so the court could come back and say that third party moderators don’t make a site liable, but it’s worth paying attention to this case. As Goldman notes: “I really can’t imagine Web 2.0 succeeding without a robust cadre of site admins and moderators helping self-police an online community.”
If A Site Uses Third-Party Moderators Who Do Something Bad, Does The Site Lose Safe Harbors?
There is a lively debate around this on the article page. Where I come down on the issue is a bit of a function of my corner of the industry. I would NEVER have unpaid moderators on my sites for kids. Too much of a liability. If I do have 3rd party moderators, they are expected to comply with my high standards and I will do heavy QA to make sure of it.
Interesting topic, none the less. 🙂