Could our student newspaper get in trouble for comments that other people leave on our online articles?

The Communications Decency Act (CDA) is a federal law that provides website operators protection from many types of lawsuits, most often, defamation lawsuits. Defamation is a legal claim that people will make when they have been injured by someone else’s spoken or written false words (usually injured financially but they may also claim that their reputation has been seriously injured). For example, if you publish a story in your school newspaper that another student at your school sells drugs, that claim is completely false, and the student who the story was about gets kicked out of school because of your story (that would be an “injury” in legal talk!), you could probably be sued for defamation.

So, here’s how the CDA protects websites from defamation claims. The CDA says that no provider of an interactive website will be treated as the publisher of any information published on that website by another person. This sounds like a lot of legal mumbo jumbo, but what it means is that when a member of the public puts a comment on a website that they do not operate, the website operator cannot get in trouble if the comment is false. For example, pretend your school newspaper, which is now digital, publishes a story about preventing teen pregnancies on the website. Under the digital article, someone posts a comment claiming that a teacher at your school, Mr. Smith, got seven girls at the high school pregnant. The operator of the website removes the comment right away, but Mr. Smith loses his job because of the uproar that the comment caused. The CDA would prevent the newspaper from being liable, meaning Mr. Smith cannot sue the newspaper for the false claim made on the newspaper’s website. 

Congress enacted the CDA to protect website operators. Would it be fair if a website operator could get in trouble with the law for things that other people posted on its website? It’s pretty clear that it would not be fair. There are two main reasons why this law was enacted. First, Congress wanted to promote the free exchange of information over the Internet. Think about it—if a website could be liable (don’t forget that being “liable” basically means the wrong was your fault and you’ll probably have to pay money to a harmed person) for things that the public posted on the website, they probably would just turn off the commenting feature and not allow anyone to post anything on the website. How weird would Instagram be if you couldn’t comment on any posts? The second reason this law was enacted was to encourage websites to monitor the comments on their website and remove potentially offensive or obscene comments voluntarily. Before this law was enacted, websites that voluntarily monitored the comments on their material but failed to remove a particularly defamatory comment could be liable. Passing the CDA encouraged website operators to monitor the comments on their website because they know that they cannot be held liable if they do regulate the material on their website and simply just miss a comment. Because of the CDA, there is no reason for websites not to regulate the comments on their website because they can keep a positive image without the fear of getting in trouble with the courts.

What if we know about the inappropriate, untrue, offensive, or obscene comments, but we don’t get rid of them?

Let’s go back to our example of Mr. Smith. Pretend someone left a comment on an online news article about teen pregnancies alleging that Mr. Smith, a teacher at a high school, got seven girls pregnant. Now, further assume that everyone knew that information was false, the operator of the website knew about the comment, and no one removed the comment. Do you think the website operators could get in trouble? The answer is no, thanks to the CDA. The reason is that if website operators could get in trouble once they knew about potentially harmful comments, it would discourage website operators from regulating the comments left on their website. If they could get in trouble once they knew about these comments, they would just play dumb and say they never knew about them in the first place. So don’t worry, even if someone leaves an untrue comment on your newspaper’s website and you didn’t remove it in a timely manner, you still could not get in trouble for defamation because the CDA specifically protects you in this situation. 

On the other hand, if a website helps develop unlawful content, such as an untrue (defamatory) statement, then the CDA will not protect the website operator from getting in trouble with the law. This situation would occur if a website edited a comment to make it defamatory or encouraged more defamatory statements. For example, let’s say that your school newspaper covers a murder case in your hometown, and police have questioned several people. One of those people is Sarah Jones. Then, someone leaves a comment on your article saying “I can’t believe this. Sarah Jones is not a murderer!” That comment seems to be pretty harmless. However, if one of the website operators edits the comment by removing the “not” to instead say “I can’t believe this. Sarah Jones is a murderer!” and it turns out Sarah Jones was only questioned, never charged with the murder, and certainly didn’t commit the murder, the website probably would not be protected from facing legal trouble. In this case, you contributed to the untrue defamatory content by editing a comment to make it untrue. Don’t expect the CDA to protect you if you fuel the fire.

Finally, the last instance where the CDA will not protect you from liability is in a situation where you promised to remove an untrue comment but then failed to do so. Let’s again look at the Mr. Smith example to illustrate this situation. Say the website operators knew about the untrue comment about Mr. Smith getting seven girls pregnant, promised to take the comment down, and then failed to do so, causing Mr. Smith to lose his job. In this case, you probably will not be protected from liability because you promised to take those comments down, and you broke that promise. In law, courts will enforce the broken promise. Just make sure that you follow through if you promise to remove potentially defamatory content from your website. It is important to note that this example is different from our previous example where you knew about the comment but never did anything about it. As long as you know about a comment and never promise to take it down, you likely can’t get in trouble if you don’t delete the comment. But in this case, the difference is that you promised you would remove it. The moral of the story is, if you are not going to remove a defamatory statement from your website in a timely manner, don’t promise to do so.

There is one more thing you should consider before you set up this website for your newspaper—what type of forum the website is going to be.

Despite the CDA’s protections of website operators, if your school newspaper website is a nonpublic forum, your school may face liability for untrue defamatory statements left on the website by the public. To be liable for defamation, the plaintiff (the party bringing the claim) must prove 

1. the statement was stated orally or was written, 

2. the statement was about the plaintiff, 

3. the statement was harmful to the plaintiff, 

4. the statement was false, and 

5. the defendant was at fault by either failing to delete the statement or publishing it in the first place. 

If the plaintiff, the person who the false statement was about, brings a defamation claim against the school for a false comment posted on your newspaper’s website, that person has to prove all five of these elements. The relevant question for us is the last element, whether the defendant (the school) was at fault. The school will likely be at fault if the website is a nonpublic forum.

There are three types of forums: a nonpublic forum, a limited public forum, and a public forum. The more control your school authorities possess over the website, the more likely it’s going to lean toward a nonpublic forum. For example, if only the school authorities post on the website and students do not have access to it, the authorities exercise prior review before anything is published on the website, and the website is clearly sponsored by the school, the website is probably leaning toward a nonpublic forum. In that case, the school is likely at fault for the defamatory comment because the school completely controls the website and it failed to remove the comment. So, if the plaintiff can prove the other four elements of defamation, the school may face liability.

To determine what type of forum your publication or website is, see our Q&A “How do I know if my school’s newspaper is a limited public forum?”

Here’s our last little bit of advice.

To ensure that your school or your newspaper program will not face legal liability if someone posts a defamatory comment on your website, there are a couple things you can do. First, monitor the site regularly. If you happen to see a comment that you think may be inappropriate, just remove it. You want the image of your school newspaper to be positive anyway, so it won’t hurt to remove any inappropriate, obscene, or harmful comments.

Second, you might also want to consider turning off the commenting function while the school is on a break. There are several breaks during the school year, such as holiday and spring breaks, and obviously really long breaks during the summer in between school years. During these times, students, teachers, or other website operators may not be monitoring the website. If you cannot be sure that someone is monitoring the site, just temporarily turn off the comments while you are on a break. Not only will this keep you from potentially being liable for defamatory comments, but it will also ensure that no inappropriate comments can be left on your website for a significant amount of time.