Do We Need a Blogger Code of Conduct? - Legal Issues

The Electronic Frontier Foundation has an excellent resource page that serves as a legal guide for bloggers. One important part of the guide talks about Section 230 of Title 47 of the United States Code. Passed as part of the Communications Decency Act of 1996, it states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Loosely interpreted, this means that a blogger will not be held liable for comments made by others in his or her blog.

Are you still covered if you edit and/or moderate the comments that appear in your blog? According to the EFF, "Courts have held that Section 230 prevents you from being held liable even if you exercise the usual prerogative of publishers to edit the material you publish. You may also delete entire posts." Some posters to O'Reilly's blogs on the subject of a blogger's code of conduct have been concerned that the idea of taking responsibility for your own words and the comments you allow on your blog implies taking on a LEGAL responsibility, thus losing the valuable immunity provided by Section 230.

To me, that doesn't seem to be the case. Tim O'Reilly is proposing an entirely voluntary code of conduct. And he certainly never intended such a code to remove the protection of Section 230. Nevertheless, he does realize that "the legal implications do need some attention," as he explained in a lengthy blog entry in which he discusses the feedback he's received. He mentioned receiving an email from a lawyer of his acquaintance who mentioned that the code raises certain issues with the protections under U.S. law of "ISPs, bloggers, and others who provide forums for user-generated content." These issues included:

• How to avoid losing or weakening legal protections against liability for infringement and possibly defamation when these protections are partly based on the assumption that posted content is not being monitored.
  
• Coordinating the code with existing legal tools that benefit those who provide forums for user-generated content.
  
• Avoiding situations that force bloggers and others into making legal judgments in public when they aren't really prepared to make such judgments.

There are other questions and issues concerning the blogger's code, but the legal ramifications may be the most important. As a web host, you may find it desirable to point customers with blogs to the EFF's Legal Guide for Bloggers page linked above, to help them make decisions.