Editorial: Should We Moderate All Comments?

A case in the Supreme Court of India is going to set an important precedent in the way user generated content is looked at. Ajit D had started an anti-Shiv Sena community on Orkut, and following anonymous abusive comments on the community, a Shiv Sena member filed a police complaint under Sections 506 and 295 A. Ajit D reportedly sought the quashing of the complaint, suggesting that the comments were restricted to a community, and were an exercise of an individuals freedom of speech. Gauravonomics has put together a timeline.

A Bench of Supreme Court Chief Justice KG Balakrishnan and Justice P Sathasivam said that “We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.”

Why is this important for us?
We’re looking at this from a liability perspective. Apart from blogs, websites like Rediff, IBNLive, NDTV.com and communities like Yahoo Groups, Orkut and Facebook receive significant number of comments. Every one of the posts on Amitabh Bachchans blog receives hundreds of comments (466 comments for the latest). When a comment is published on a website, blog or a social network, the following entities are involved:

— Commenter – who has left the comment
— Moderator – who has the ability to moderate comments
— Owner – who owns or has started the community, blog, group or sub-network
— Platform – or the platform which allows such comments and communities
— ISP – who provides access and the ability to publish these comments

Three things to note:
— Internet as a published/broadcast medium: the comments of the bench appear to suggest that since a large number of people access the Internet, a comment online will be seen as something of a public broadcast – and perhaps seen in the same light as the printed word or a message on TV. It is not restricted to a small group or community, and hence liable for, in this case, criminal proceedings on the basis of the content.
— Where does the buck stop? Does the ability to moderate make a moderator accountable? Does the ownership of a community make a blogger liable? Or, in case of a social network or a blogging platform, is the network/liable liable? Section 79 of the IT Act 2008 discusses the independence of an intermediary, but does not clearly define it. For the time being (until the rules are finalized), that interpretation is for courts to make. In this case, it appears that the owner of the community (Ajit D) is being identified as an intermediary, but not the Platform (Orkut).
— Freedom of Speech? Though a majority of the blogs are towing the freedom of speech line, we’re not very sure if that argument is valid here. For a moment, forget that an abusive comment was not made against the Shiv Sena, but against you. The freedom of speech is not the freedom to abuse, and if a criminal case has been filed, the liable entity has to be identified.

Implications
In this case, the court is going to verify whether or not the person who has started and runs a community is liable or not. If a community owner and/or moderator is held liable in this case, then other community owners (including us) will have to moderate all comments before they are published, because once published – we are likely to be held accountable.

3 Comments

Maverick March 2, 2009

As is obvious, internet is different form of media than traditional vehicles viz print, in the sense that it allows editorial shift in favor of an internet user. Hence content creation moves to the mass rather than chosen few.

Hence, its deemed responsibility of the platform owner/publisher for whatever is available for consumption--user created/moderated/open/closed. One/publisher/platform owner cant take recourse in law on the premise that objectionable content was created by somebody else or its available for certain community.

Chiphead July 24, 2009

This view is not entirely true.US courts, time and again have said that the platform owner/publisher is not responsible for the content written by someone else. However, a French court found Yahoo guilty because someone had posted Nazi memoribilia for sale. This issue needs to be completely hashed out and common global standard will have to evolve.

shyam somanadh March 2, 2009

As a publisher you are already accountable to what you publish on your site, with or without moderation. But being answerable does not mean you will get thrown into the slammer for allowing comments, but allowing anything and everything to be said is an issue.

From previous experience in the matter (where we got dragged into a cybercrime cell investigation into some malicious comments), what I remember is that as long as you log the data (unpublish comments, don't delete them) and provide them if the court asks you for it, you are pretty much in the clear. If, as a publisher, you allow comments to be carried on your system that will get you into trouble as any printed material, the issue is not really with blogging or freedom of expression.

What stands out about the case is that the community owner is being shown as the intermediary (is this accurate, especially when the court has given enough leeway to the intermediary?), than the platform itself. This will, at least in the short run, open the doors for needless litigation regarding the internet and some sense will prevail, sooner than later. Incidentally, the court has only said the person has to defend himself, than pronounce him guilty. In all probability, with decent enough lawyers, he should be able to walk away from this.

An expensive irritant? Certainly it is. Death to freedom of expression? It certainly is not.

I guess an ideal solution would be to have a first level of redressal that does not involve the courts. Something like a mandatory offensive content contact link on every website, using which you can notify the platform/community owner about content you may think is offensive. If the requests received on such mechanisms don't get a response or does not get acted upon, it is only then then road to the court is available to the plaintiff.

Of course, this means you will need to put away even more resources to monitor that channel of communication and be swamped with requests, but it can be much better than being dragged to court every time.

While on topic, it is a good time to point out that you don't have a ToS anywhere on the site. Get one ASAP and ensure all content/comments are in compliance with that :)

Related Posts