Blogger Not Liable for Nasty Remarks by Anonymous Commenters

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Blogger Bernie O'Hare

Bernie O'Hare, a blogger who failed to delete derogatory comments posted by third parties on his website will not be held liable for the anonymous comments, despite his periodic regulation of the comments section.

In a recent Northampton County Court of Common Pleas decision, a Pennsylvania judge ruled the blogger was simply exercising his “traditional editorial functions,” not practicing defamation or false light invasion of privacy.

The case turned on the Communications Decency Act (CDA), which states that no provider of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider.

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Judge Anthony S. Beltrami agreed with the defendant's theory: under the CDA, the third party anonymous commenters are the “information content providers” under the meaning of the Act. Nodding to a 2006 Philadelphia Court of Common Pleas case, D'Alonzo v. Truscello, Judge Beltrami reminded the parties that a party acting as a passive conduit of information is deemed not to have created or developed the information.

A public safety menace?

The plaintiff, Tricia Mezzacappa, a candidate for the public office position of Northampton County Council, felt O'Hare was, however, “developing” the information. Mezzacappa argued that O'Hare should not be allowed to pick and choose which comments he moderates online.

Judge Beltrami agreed with Mezzacappa only to the extent that, if O'Hare had posted any of the comments himself, he could be held personally liable for only those statements. Mezzacappa alleged the defamatory comments, such as one that labeled her a “public-safety menace,” and others that alluded she had threatened to kill an elected official, should not be allowed to stand.

Judge Beltrami disagreed, finding O'Hare was well within his publishing function in determining “whether to publish, withdraw, postpone, or alter content provided by others. This is the very conduct Congress chose to immunize” through implementing the Communications Decency Act, Judge Beltrami reasoned.

Mezzacappa argued that because O'Hare, who owns and operates his blog, Lehigh Valley Ramblings, frequently did delete third-party comments he disapproved of, any third-party comments left by O'Hare should be deemed “approved” by him as the blog's owner.

Three elements

The court applied the Third Circuit's Test for immunity under the Act, which requires the following three elements to be met:

  1. The defendant is a provider or a user of an interactive computer service.
  2. The asserted claims treat the defendant as the publisher or speaker of the information.
  3. The information is provided by another information content provider (in O'Hare's case, the third-party commenters).

Judge Beltrami's decision is significant for how social media will correlate with the Communications Decency Act in future cases. The Northampton County Court of Common Pleas' holding that an anonymous commenter constitutes an “internet content provider” within the meaning of the act is part of a continuing trend the court mentioned.

Nodding that this ruling is one of many recent rulings where courts have declined to limit the application of the CDA's immunity to large-scale interactive computer services, the court paved the way for bloggers in this jurisdiction to maintain their full editorial function, managing and editing anonymous blog comments by third parties however they choose.

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