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Can you be sued for comments left by your readers?

January 30th, 2008 · 10 Comments

Bloggers like journalists (of course, one should not equivalent them) face many legal risk as their writing are published publicly, amongst others, defamation suit is one of the greatest risk. 

It is obvious that if a blogger makes a defamatory remark in his blog, he is bound to be held liable for what he says. This is a clear cut case.

However, will a blogger be held liable for publishing defamatory comments left by his readers/visitors?


US Position   

As we know, US has the most comprehensive laws governing online activities due to the advancement of the ecommerce in US. They even have something call Communication Decency Act (CDA), which is meant to regulate pornograpic material on the Internet. 

I wish to draw your attention to an interesting provision, Section 230(c)(1). 

Section 230(c)(1) of the CDA provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others, which states that:

“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.”

The court found that a defendant must satisfy each of the below 3 tests in order to enjoy the benefit of the immunity:

  1. The defendant must be a “provider or user” of an “interactive computer service.”
  2. The cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue.
  3. The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.

It is likely that a blogger is a user of an interactive computer service (i.e. blog) and he may enjoy the immunity under this Act.

However, there are many complex legal technical issues involved when one wishes to rely on this immunity and there are certain limitations too.  

You may want to read the landmark case: Barrett_v._Rosenthal, in which the US court ruled in favour of the defendant.

Malaysian Position

Unfortunately, I have not come across similar provision like section 230 in Malaysia so far. I believe there is no such equivalent provision renders immunity for Malaysian bloggers.  As such, it is likely that Malaysian bloggers may still be held liable should he chooses to publish the defamatory comments left by his readers.   

So, next time when you are approving your readers’ comments, please think twice…!!!


(Awas = Be careful in Malay) 

Tags: Malaysian Cyber Law

10 responses so far ↓

  • 1 Danny Foo // Jan 30, 2008 at 8:42 pm

    Another way of looking at it is you could be sued with the reason you started the issue. In terms of privacy laws or communication of the Internet, even the responsible party cant make heads or tails. Sigh.

    -posted from an iphone

  • 2 Michelle // Jan 31, 2008 at 1:26 pm

    Just another example of the law struggling to pay catch up with technology which gives us all more and more opportunities to behave badly, I think. Particularly, if we’re foolish enough to think that we can really be anonymous.

    It’s an interesting subject that I’ve read a little bit about before online. You might find this interesting.

    On some level it just feels fundamentally wrong to me though that I should personally be responsible for what another person might say. At least, in the abstract. If I actively encouraged (aided and abetted perhaps, for lack of a better term?) it, that might be a different story.

    Still, as a matter of self-preservation, I suppose if someone left a comment that I felt was really out of line, I would, at a minimum, respond to it setting out my opinion. And if it was bad enough, I would likely just delete it and post an explanation.

  • 3 Eddie Law // Feb 1, 2008 at 10:38 am

    Danny Foo – Not really because the webmaster started up the issue but more on the fact that the information is disseminated through the blog.

    Michelle – I saw that article before, it is interesting.

    In fact, I also think that one should not be responsible for others’ misconduct, though that misconduct was committed in the webmaster’s blog. However, do you think by approving the comments is a sort of aiding or encouraging the publish of the defamatory comment?

  • 4 Michelle // Feb 1, 2008 at 10:57 am

    Yeah, there is probably something to that. Or, at least, that’s certainly what plaintiff’s counsel will argue. But to go down that road would hold the webmaster to the standard of the newspaper publisher, wouldn’t it? Well, looking at it that way, perhaps it is fair then. If you want to play in the same arena with the big boys, perhaps you best be sure that you are ready to take on the same responsibilities.

    It’s interesting because I am really just thinking it through as I am typing. Personally, I think I like the American approach. Or let’s just say that if I am ever unfortunate enough to be a defendant in such a circumstance, I will definitely be attempting to convince the court that their legislation provides a reasonable standard which should somehow incorporated into our law. Bottom line is that most jurisdictions will probably eventually need to deal with the matter in some form by way of legislation, as the US has.

  • 5 Defamation Law in Malaysia // Feb 29, 2008 at 7:40 pm

    [...] mentioned in my previous post, one of the greatest risk faced by bloggers is defamation suit. For example, one of the well known [...]

  • 6 Tobs // Apr 10, 2008 at 10:08 pm

    are there any landmark cases in Malaysia regarding the computer crimes act?

  • 7 Eddie Law // Apr 11, 2008 at 10:33 am

    Hi Tobs – which particular compuer crime act are your referring to?

  • 8 Tobs // Apr 15, 2008 at 12:54 am

    erm.. specifically regarding to section 3 – section 8 of the comp crimes act?
    cos it seems that there are very little cases regarding to these few crimes. :)

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