GregClow wrote:borderline_alcoholic wrote:
Yes actually, Cass as publisher is legally responsible for everything on this site (he is far more liable than the author).
Do you have any recent legal precedents to back this up?
Not off hand, but I'm sure that I can dig some up again if necessary. Computer Science/Software Development is actually my field and I am quite aware of the legal obligations on websites and the things which you can do. There is now little question that a site author is responsible for any libellous content, however some leniancy is given with the posts of its users for obvious reasons (although again, Canadian law is something which I would have to check, but it does tend to follow the trends set in other Countries albeit not with the same level of dogmatic lunacy as the US).
In reality these things are usually dealt with out of court.
This is different to the ISP examples, which is more about what is just sitting on servers (of which there are obviously too many to actually check for every single file etc) and is far more of a grey area. The same with the space in which this site is stored - if someone managed to upload some files onto that server without any links or anything, Cass would probably not be found liable for them. But, if you own a site, you are completely responsible for its front-end published content as that is easy to look after and see what is happening. In practice, there has been some leniancy given to message boards, as obviously posts are displayed as they come in without the owner's immediate control.
In pursuing this legally, typically the first step is for your legal team to send an official letter requesting the removal of the damaging comments. If this is agreed to, then usually proceedings go no further (indeed I know of no cases where that is not the case so to me that would be a grey area, whether it is in the law or not), if not then it gives the prosecuting side the argument that the site owner is fully aware of the offending text and has refused to remove it, thus neatly removing the ambiguity of the web and bringing in standard publishing and libel laws. Then they just have to prove that the offending text is libellous and show what financial damages their client has incurred due to it.
This is a very old and established section of law which applies to all published works including web-publishing. The only grey area is, as with the ISPs, content that is added without the owner's knowledge, even though by setting up a message board he is giving tacit approval.
Your formal letter requesting the removal of the offending text removes that ambiguity. Obviously, it will not stop posters on the site from sending additional comments, so you might want to request that certain users be banned - but that is a very grey area still, so I am not going to comment on it. Sometimes you will also request that an apology be printed - which is also a very grey area.
Anyway, in court, you as publisher would have to back up the comments of your users/authors with evidence of their claims.
Many such cases generally get handled outside of court - which is why the legal grey areas are still maintained. But this also works to the advantage of the prosecuting side too, as when looking at infringements of grey areas, the courts will consider what is standard practice and if all other sites will comply when officially asked to remove offending text while its legallity is pursued, then the Courts will likely take that as a defacto standard and anything which does not comply with that will just become illegal.
As with most things, you have to fight to maintain your rights and on potentially libellous issues, websites have generally not done so as libel law is actually very strong.
Not to say that you're completely wrong, but there have been several legal cases regarding the responsibility of ISPs and websites when to comes to the content being served by or through them that went against what you suggest above. For example, the recent court ruling stating that Canadian ISPs bore no responsibility for music files and other copyrighted materials that were being stored or downloaded by their users.
As I said the ISPs differ from what appears on the front-end of a site which is being maintained by one owner. There is less to administer and it is far more analogous to other published media and so the same arguments do not readily apply.
The other difference is that with ISPs we are talking about copyrighted material being distributed. Although the MPAA and RIAA would like us all to believe different, Copyright law is actually pretty weak - and is very different to theft, which they seem to keep insisting is the same thing (something of a personal annoyance to me). This would be defamation and libel, which are *MUCH* stronger pieces of legislation and as such are far better at steamrollering through what little remains in the way of grey areas.
Essentially, instead of the case being about whether you are allowed to host the text, that is irrelevant - host away - the case becomes about whether the material which you are knowingly publishing is libellous to someone else and there is no legal ambiguity there - the only ambiguity comes in assessing the damages done to the prosecuting side as and when they win.
I know that it's not a completely analogous situation, but a good lawyer could probably use it in an argument regarding postings to a public message board such as this one.
Which is why you formally ask for the removal of the offending text first. That way they definitely are aware of it, have explicity decided to continue to publish it after your request and standard publishing and libel laws comes fully into play.
