Should WordPress.com be Liable for Blog Content?
A Brazilian judge may impose a ban against access to all WordPress.com blogs because a single blogger posted an adult content video. In order to block access to the offending blog, because of the identical IP address, it might be necessary to deny access to all WordPress.com blogs. You can read the details at “Brazil: Bloggers united against Wordpress ban.”
In her post “WordPress.com Banned Again: Why Aren’t You Concerned?”, Lorelle VanFossen raises two issues:
(1) the apparent lack of blogger interest in fighting such bans; and
(2) to what extent WordPress.com as a whole should be responsible for the misconduct of a single blogger.
Let me tackle these issues separately.
1. Free Speech.
From a U.S. citizen’s point of view, an ideal world would have the same constitutional freedom of speech protections that we enjoy — and it should be a goal worth fighting for because such is directly tied to other personal liberties. Yet as a practical matter, speech rights are limited in most countries. For example, criticizing Islamic extremists in a Canadian blog or forum can lead to civil suits and prosecution for human rights violations in a PC society that has run amuck with moral relativism.
In short, we should promote free speech but not expect it where there is no constitutional protection for it.
2. WordPress.com Liability.
Lorelle correctly lays primary responsibility on the individual blogger rather than WordPress.com as a whole. Where we disagree is her contention that WordPress.com should be liable only up to the amount one pays to blog.
As we’ve seen with recent lawsuits against Craigslist and others, the less involved a site is in screening the content, serving instead as a mere conduit of information posted by third parties instead of as the author of such content, the more likely the site’s, owner, host, and webmaster will be absolved of liability for offending content.
Indeed, one has to wonder if it is even technologically feasible for a WordPress.com, Craigslist, YouTube, etc. to effectively police with preemptive actions to comply with applicable laws around the world. I’d contend that it isn’t possible to do it right.
Because of this, absent facts showing that WordPress.com was knowingly involved in the promulgation of the video in question, I don’t believe the site should owe anything. Period. End of story.
However, I do agree with Lorelle’s argument that WordPress.com should provide judges with the technical information necessary (if feasible) to block a single offending blog so that innocent bloggers are not punished for the misconduct of one blogger.
What do you think?
In your opinion, what are WordPress.com’s responsibilities?
About the Author
With an advanced international law degree from Georgetown University and more than 15 years of real world legal experience, Attorney Mike Young is President of the Internet Ethics Council and creator of Website Legal Forms Generator software. He helps entrepreneurs protect and grow their businesses online.
Similar Posts
I have no qualms whatsoever with Lorelle’s two first points. I do, however, have a problem with precisely that which you also point out: that in this world, fundamental rights and obligations are differentiated according to oftentimes nuanced shifts and accents, and that therefore, one oughtn’t presume the same guarantees and legal protections are afforded similarly around the globe.
And moreover, that to expect global outcries and outbursts of similar righteous indignation stemming from the same expectations of different legal systems is naive at best and ridiculously narrow sighted to boot.
So, while I agree with the mindful and practical suggestions derived from “common sense and responsibility” in the first half, presented under the heading “What Responsibility Should WordPress.com Bear?”, both my thumbs go down on the second half of her post, under the to me somewhat amusing heading “What Happened to Our Enthusiasm for Protecting Freedom of Speech?”
I’m glad you tackled these issues from the legal perspective. And I love how people are assuming that 1) I’m a US Citizen and support their laws implicitly, and 2) I expect US attitudes to be used as a hammer on other countries. These really delighted me as people made such sweeping assumptions.
I am thrilled that people are talking about this issue, especially when so many stayed quiet when I published about the bans in Turkey and China and elsewhere, especially as those were clearly freedom of speech issues. Having lived many years as an X-pat, I am frustrated with the apathy of my own country, as well as so many “civilized” countries around the world, so I’m thrilled that my kick in the butt to talk about this issue has resulted in people starting to think and blog “actively” instead of sitting back and watching.
By talking, we are educating ourselves and others by sharing our opinions and expertise on the subject. Maybe some of that will trickle down to those in a place to enforce such decisions in the future, realizing that their attempts to ban the single impacts whole communities, and reconsider.
Thank you for being a part of spreading the educational and legal aspects of this issue.
Alvaro,
Thanks for responding.
Other than the variances between free speech rights across the globe, it appears that you and others discussing Lorelle’s post agree with the bulk of what she wrote. I suspect that if we focus on the areas of common agreement, the blogosphere will have more impact in getting desired results.
Best wishes,
-Mike
Lorelle,
I appreciate your taking the time to respond and your kind words.
FYI – my 12-year-old son just finished reading your “Blogging Tips” book (got it from you at Dallas WordCamp). He’s created a list of things from your book that he will be implementing on his blog during the next month.
The book is an excellent resource for him (and anyone else who blogs).
Best wishes,
-Mike
wow! Thank you! And I can’t wait. You’ve got a firecracker kid, without a doubt!
Mike, it’s not variances in “free speech” but variances in fundamental expectations of the individual toward society and views on his/her fundamental role (and rights/obligations) that which varies – more in nuances than in truly stark contrasts. A bit like the butterfly effect, such small nuances can have vast externally different appearances. That’s why I referred indirectly to the concept of “free speech” as fairly typical US vernacular. The larger, more common underlying notion is freedom of opinion (and its expression) which presupposes limits, just as the in the US archetypal example of yelling “Fire!” in a crowded theater isn’t deemed permissible.
But getting away from that, which arguably might be considered irrelevant in the specific case at hand (i.e. “the Brazilian judge / the ban of WP”), yes: it’s far more productive to explain the mechanics, as Lorelle also sagely suggests.
The reason I’m insisting on taking the rose-tinted glasses off (put differently: stop assessing the world alongside only locally applicable criteria) is that it doesn’t help to get stuck on the differences; the incriminatory/accusatory mode of communication won’t either address or remedy the situation.
It’s like trying to resolve real-world problems by way of litigation, by legal order only; I think that especially in civil law, an underlying willingness to reach a reasonable mutually acceptable compromise is more important (productive) than even the wisest judgments might accomplish. An Andalusian gypsy curse comes to mind: may you have lawsuits, and win them. In this case (“Brazilian judge/WP”) a more politically/practical approach seems more productive than a purely legal approach. Of course, I’m not dismissing litigation – it’s just that in an international context, things get really messy really quick (and I’d like to casually note that it’s not an entirely irrelevant or coincidental circumstance that the ICJ and the ICC are such hotly controversial issues specifically in the US).
To me at least it’s clear in this case that explaining the basic schematics (or even “business model”) of Web 2.0 type enterprises such as WordPress.com is more conducive to letting applicable local law run its course without causing disproportional injury to tangentially caught up parties (WP here), than exchanging mutually inert claims to legal precepts. Out of that explanation comes the insight that WordPress.com is at best providing a publishing tool, in which in this case (as I understand it) a YouTube.com item was placed, for which YouTube (assuming it took reasonable action on its part to provide remedy) in turn could point to (for example) the ISP of the person causing the hubbub.
On the other hand, the very definition of what constitutes “reasonably action” and its mandated parameters is what is subject to varying traditions and expectations to which I referred initially. That’s why in the balance and in my opinion — aside from pursuing a practical, amicable solution such as providing necessary information as suggested — it’s not a “freedom of speech” issue, but of properly understanding the scope and practical limits of legal remedy in and by itself that which points to the best course of action.
So, while I’m not convinced that the path to practical solutions for real-world problems necessarily concludes in the hands of legal counsel (or judges), legal counsel (or judges) are a necessary part of that path.
Having said that: darn, an Atari 400… I started off with the later 400XL – if only I had kept my copy of “The Atari BASIC Sourcebook”… Its most valuable part to me was its fantastic preface, with its first-hand account of how SMI developed its ROM-based BASIC to fit into a whopping 8KB, well within six months, by a microscopic team of developers. I felt almost sacrilegious when years later I bought the 130XE, with all that wasteful RAM available in four banks of no less than 32KB each! Ah, golden days…
PS: Lorelle, trust me when I say I understand the expat angle – I’m a “yurpeen” expat in the US.
Oh, whatever WordPress believes their responsibilities are. Of course, that doesn’t necessarily stop someone from trying to necessarily tell them via court (knock on wood) what they should be.
I think the issue raises a significant point in the light of modern technology and a legal framework that, in many places, is still predicated on print media.
In a world where everyone can ‘publish’ using tools such as Wordpress and YouTube is it relevant to be prosecuting the service ? In fact, would it not make far more sense to treat such services similarly to telephony providers ?
Surely, in a world in which everyone can publish, they are the ones who should become liable for any consequences of such publication ?