Commenting conundrum

Online Journalism Review: Managing online comments

There is a rich history of pseudonymity in American opinion journalism. Alexander Hamilton, James Madison and John Jay wrote “The Federalist Papers” using the pseudonym “Publius,” but not without their publisher’s prior permission and knowledge of their true identities.

Printed periodicals grant pseudonymity but never anonymity.

Although the technologies of this medium evolve with the speed of “Moore’s Law,” the actual laws and liabilities governing the technologies evolve about as fast as the eponymous Gordon Moore can walk (he celebrated his 77th birthday this month). That is because the mechanical topic of technology and the human topic of ethics seemingly aren’t related to each other.

What I’m about to state might seem farfetched, but a decade of studying online news media leads me to fear that it is true. I fear that our industry has fallen under the spell of a techno-utopian fallacy that says we can foster a renaissance in journalism, civic involvement and comity simply by implementing new-media technologies.

Technology alone cannot foster a renaissance in journalism, civic involvement and comity. What we need are policies and practices to govern how our readers utilize these online technologies.

You are irresponsible to your publisher, readers, transparency, and journalism if you offer absolute anonymity and spontaneous publication in your comments sections. You might get away with it for a while, but not forever.

Washington Post ombudsman

Those in public life come to expect despicable and hurtful comments. Most have developed thick hides.

But for average folks who are out of the public eye and agree to be featured in The Post, brutal online comments can be unexpected and devastating. Post reporters say increasing numbers are expressing regret they cooperated for stories that resulted in vicious anonymous attacks.

For every noxious comment, many more are astute and stimulating. Anonymity provides necessary protection for serious commenters whose jobs or personal circumstances preclude identifying themselves. And even belligerent anonymous comments often reflect genuine passion that should be heard.

While some readers complain they’ve had it with unruly online conversation, thousands have joined it. In a typical month, more than 320,000 comments are made in response to Post stories, columns and blogs. That’s almost a third more than a year ago, said Hal Straus, who oversees commenting for the Web site. The growth is critical to The Post’s financial survival in the inevitable shift from print to online. The goal is to dramatically build online audience, and robust commenting is key to increasing visitors to the Web site and keeping them there as long as possible.

Media Shift on the law

In Collins v. Purdue University, 2010 WL 1250916 (N.D. Ind. March 24, 2010), a federal court held that under Section 230 of the federal Communications Decency Act (CDA) of 1996, the newspaper could not be held liable for the online comments posted by third parties.

Had the same accusatory third-party comments been published in the newspaper’s print edition — say in a letter to the editor or an op-ed piece — the newspaper might have had a much harder time avoiding liability. That’s because the legal rule in Section 230 of the CDA that is applicable to liability for online statements made by another party is much more favorable to a publisher than the legal rules applicable to liability for third-party statements in a print publication.

Protection goes beyond liable.

Thus, in Green v. America Online [PDF] (3d Cir. 2003), an online provider was protected from liability for damage to a user’s computer that was allegedly caused by another user’s malicious transmission of a “punter” signal in an online chat room.

Online providers have also been held immune from liability for the acts of sexual predators who contacted underage victims via their services (Doe v. MySpace [PDF] (5th Cir. 2008)) and from liability under civil rights statutes for religious harassment by users (Noah v. America Online (E.D. Va. 2003)). The online bulletin board Craigslist has been held immune under Section 230 from a local sheriff’s claims that the service is liable under public nuisance laws for causing or inducing prostitution as a result of its “erotic services” listings. Dart v. CraigsList [PDF] (N.D. Ill. 2009)

It was the stated goal of the U.S. Congress in enacting Section 230 of the CDA to “offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” That goal has certainly been achieved, but the diversity of discourse, cultural development and intellectual activity that is supported by Section 230 is accompanied by a significant amount of objectionable content in the form of defamation, vitriol and hate speech.

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