June 25, 2007

Reader comments present a variety of legal questions
By Denise Nix
Staff Writer

Most legal experts agree that a newspaper, for the most part, is not responsible for what appears in user comments features, such as those offered at Dailybreeze.com.

"It's like an obscene phone call," said Genelle Belmas, an assistant professor in the Department of Communications at California State University, Fullerton.

If someone calls in the middle of the night and bothers you, you don't sue the phone company - it is merely the vehicle through which the objectional communication was made, Belmas explained.

That doesn't mean, though, that newspapers would be wrong to assert some sort of discretion over the comments, she added.

"I don't think the First Amendment should view it as censorship - what you're doing is creating a place where more speech should take place," Belmas said.

Personal attacks and defamatory and libelous messages do not add to the public discourse and debate, added Belmas, who is not a lawyer but teaches media law.

"Who would want to go to a message board where it is just attack, after attack, after attack?" Belmas said.

Where the law gets fuzzy is in determining how much control newspapers should assert on user comments, and if more moderation translates to more liability.

Kelli Sager, a media lawyer at Davis Wright Tremaine in Los Angeles, said that several years ago Congress first tackled the issue of third-party posting to protect Internet service providers, like Yahoo and America Online.

Since then, the law has been interpreted to protect any Web site from liability as long as it's a third party posting, and it's not being edited in a way that makes it defamatory, Sager said.

As recently as a year ago, newspapers were trying to be hands-off, fearing that the more the comments are edited or moderated, the more responsibility they take on for the content.

"Now the trend is to have more rather than less editing to deal with the responsibility issue as opposed to the legal liability issue," Sager said.

And even if more control is deemed appropriate, most newspapers simply don't have the resources or staff to read the hundreds or thousands of comments that come in.

Newspapers are well within their rights if they remove comments on a case-by-case basis, experts agree. Most rely on readers to self-moderate, but editors can take action on their own if comments fall outside stated guidelines.

The strongest law surrounds copyright infringement. The Digital Millenium Copyright Act clearly instructs a Web site what to do with copyrighted material: take it down once it's brought to your attention, and you're not responsible.

But even if illegal material is removed from a Web site, the question still remains whether harm had been done because it was already viewed. There's also the issue that other sites could have linked to that material, and it may persist somewhere else on the Internet.

"It has permanence," said Carole Handler, a media law attorney at Foley & Lardner in Los Angeles.

The saying about newspapers used to be that today's news is tomorrow's garbage, but now it lives on forever in cyberspace, Handler said.

The inherent problem with user comments, Handler noted, is that they tend to come from people who have some sort of emotional connection to the topic, which heightens the likeliness for inflammatory speech.

"Most people will make these comments on the Web because they're angry," Handler said. "They are the people who honk at you ? and they're on your tail afraid of missing the yellow light."