The Guardian's Readers' Editor, Siobhain Butterworth, has written an insightful post explaining why, in some circumstances, posts on Comment is Free don't allow comments from readers. Online community managers will also find some sound advice here.
Butterworth writes,
"Last week... another piece on Cif discussed the relationship between the media and the police in the McCann case and in other criminal investigations - but it was closed for comment.
A short note explained that this was for "legal reasons". Some readers felt this was not so much an explanation as a lofty way of saying either "we're not going to tell you why" or "it's too complicated for you to understand".
Most people, including some journalists and many people who comment on blogs, don't fully understand libel and other laws that restrict what they can and can't say online.
Publishers such as the Guardian choose to moderate the online discussions they host which, some solicitors feel, might actually increase rather than decrease their legal responsibility for the comments they allow to appear on their sites. The law, as Mumsnet recently discovered, is far from certain.
Personally, I think it's irresponsible for a website to offer users the ability to comment and discuss on site without at least offering on demand moderation (via "alert a moderator" links) of that content. I know that Butterworth agrees that the Guardian should take some responsibility for protecting it's users by moderating. Sometimes, however, the risk of allowing comment just becomes too high. Butterworth explains:
"At least 20 pieces involving the McCanns have appeared on Cif since Madeleine McCann went missing in May... Hundreds of comments were posted to a few articles in September, after the Portuguese police named the McCanns as formal suspects, with headache-inducing consequences for the moderators. Discussion threads on four pieces were closed, or closed early. The Guardian's talk policy does not allow defamatory postings and the problem was that many of the deleted comments were no more than strong opinions weakly held - they had no basis in fact."
If the defendant in a libel suit can prove that their comment is based upon an opinion honestly held, based upon fact and given without malice, for example a negative book review, then they will usually, although not always, be successful in using this defense. But determining what is and isn't honestly held opinion, what is factually true, and whether a comment has been posted with or without malice is a tricky business. Butterworth says,
"The moderators are not lawyers, or fact-checkers. They cannot give reasons to every user whose comments are deleted, though they try to do so when time permits. To put their task in perspective, on one Friday in September, more than 3,800 comments were posted on the Guardian website. The volume means that the moderators' approach to enforcing the talk policy has to be broad brush. The McCann postings stretched the moderating resources too far, the moderators told me. They were concerned about the number of postings they were deleting and they were aware that people were frustrated. All things considered, a decision was made to close threads down. Roughly 1 in 5 of the postings to one piece were deleted and the decision to stop the discussion there was understandable, but I'm not persuaded that it was justified in the other cases..."
Butterworth goes on to explain that, where difficult subjects are raised by a post, users should be warned in advance that the rules are likely to be strictly enforced and, of this advice is ignored, the discussion can and will be shut down. Anything else - that is, not allowing comments on a post just because people might break the rules of discussion rather than because people have broken them "puts the punishment before the crime."
[Read Siobhain Butterworth's Full Post]
Robin,
To clarify about the Guardian's moderation policy and put it into perspective, our blogs are reactively moderated as opposed to pre-moderated.
Our readers and our journalists flag up comments that might violate our talk policy. We also monitor all of our blogs for libel. However, comments are published live to the blogs without staff intervention apart for a spam filter and some very liberal profanity filters. We do not pre-moderate, which would require a member of staff to approve every comment that went live to the site.
It's my understanding that the legal issues in terms of moderation aren't whether or not to moderate but whether the comments are pre-moderated or reactively moderated. If we approve all comments that appear on the site, then the legal exposure may be greater. For reactive moderation of comments, the bulk of legal precedent supports the 'mere conduit' standing for publishers. Even in terms of British libel law, responsiveness can be part of a defence.
I just wanted to make it clear what our policy is at the Guardian, and also, this isn't an issue of moderation or no moderation. Does any large publisher or media company not moderate comments on their blogs or online discussions?
best,
Kevin Anderson
Guardian Blogs Editor
Posted by: Kevin Anderson | 11 October 2007 at 02:13 PM
Kevin, I applaud you on your approach. I do hope however that your moderation is based on what public postings should be morally tolerated as opposed to legally tolerated. In the US may there is a clause called the "good Samaritan clause" in the communications decency act. The historical definition of course means that the moderator can lend a hand to a victim of libel or harassment without legal repercussions from the original author, even if the posting doesn't break any laws.
Posted by: Michael Roberts Internet libel victims advocate | 07 August 2009 at 08:14 PM