What do you do if someone leaves distasteful comments on your blog?

The law regarding comments is actually a bit dicey: if a blog owner’s Terms of Service clearly say that they allow unmoderated comments, that they bear no responsibility, and if they remove nasty comments once they’re brought to their notice, they generally won’t be held liable for nasty comments made by other people. The picture changes, however, if the comments on a blog are moderated: if a blog’s owner chooses to take on the responsibility of not allowing nasty comments, then they will be liable if any appear. The result is that absurdly enough, the less care you take, the less liable you are. This is, however, drawn from case law in non-Indian jurisdictions; the Indian position is unclear.

The Law Applicable

In the case of a blog, there are two different agreements.

One between the owner of the blog and and WordPress / Blogger / Blogware / whichever service used i.e. the fascinating Terms of Service which hardly anyone ever reads.

The Automattic ToS does not speak of which law applies to the IP claims and one can only suspect that the issue is arguable since according to the agreement, all IP remains with authors and is not assigned to Automattic. So, the content of a blog may not automatically be treated as a part of the site to which the ToS applies.

However, the ToS is a boilerplate contract so presumably it could be challenged in an Indian Court which probably wouldn’t be too useful since in the absence of unconscionability etc., Indian Courts are not particularly enthusiastic about interfering with contractual choices of law or fora.

The second agreement would be between the owner of the blog and their visitors.

If the owner of a blog does not have such an agreement, if a case was to be filed, it could be done wherever the cause of action was to arise. Obviously. The country where it was filed would generally apply its own law. Any court could choose to override the ToS of the owner of the blog. The only thing the ToS would do is give them a much firmer ground to stand on while arguing their case.

The bottomline is that there’s nothing to stop anyone from filing anything anywhere. The best the owner of a blog can hope for if that happens is that the case gets thrown out in a hurry.

Consider a case where a third party were to sue for a nasty comment about him. Continuing with the same example, WordPress, if it could be sued, would probably have to be sued in the US because that’s what its ToS mandates. The owner of the blog could theoretically be sued in India. Or the blog service provider and the owner of the blog could be sued wherever the comments were viewed and the damage was done (although an Australian Court refused to allow a plaintiff to sue in such circumstances in Australia a while ago because of a ToS agreement which said that all disputes must exclusively be settled in the US).

In India, case law is still emerging and statutory law is woefully inadequate at the moment.

Defamation

Defamation in India is both a criminal offence and a civil wrong, and there is nothing to stop someone from suing the owner of a blog. And if he / she showed that the actions / inaction of the owner contributed to the defamation, presumably, that person would probably be awarded damages.

As far as defamation as a criminal offence is concerned, the position is somewhat different and only the person who actually makes a defamatory statement can be prosecuted. The Penal Code which was drafted in 1860 obviously has not taken the creation of the Internet into account.

The IT Act

Section 79 of the Information Technology Act, 2000 which deals with the liability of ‘webmasters’ says:

Network service providers not to be liable in certain cases

For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

A ‘network service provider’ means an intermediary, and under Section 2(w) of the Act, an ‘intermediary’ with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message. ‘Third party information’ means any information dealt with by a network service provider in his capacity as an intermediary.