The “Comments” section is an essential aspect to most blogs. It’s where you develop an actively engaged community. It’s also where you become most susceptible to legal liability related to defamation, privacy rights, publicity rights and copyright infringement.
There are several steps you can take to limit your liability. First, you should require all commenters to agree (by proactively checking a check box) that they have read and understand your “Terms of Service” (“TOS”) prior to being able to post a comment to the blog site. Your web developer and/or blog hosting service will typically provide you with a barebones TOS that ought to be augmented to include a whole host of site rules, rights and prohibitions – chief among them a prohibition against defamation, invasion of rights of privacy and publicity and copyright infringement, as well a waiver of liability from and against the same.
But a TOS, in and of itself, is not nearly enough. The courts are in agreement that a blog owner can’t hide their head in the sand and must actively monitor comments made on the blog. For that reason, we recommend that comments not be made live until they are reviewed by a blog administrator. Further, we strongly recommend that you (1) add “DMCA Takedown Agent” information and protocol to your TOS and (2) register such Agent with the Copyright Office by completing and filing the DMCA Agent Form. (Visit www.copyright.gov for more information, or email us at firstname.lastname@example.org for information about our flat fees for drafting a comprehensive TOS or registering a DMCA Takedown Agent for your blog).
The 1998 Digital Millennium Copyright Act (“DMCA”) classifies blogs as Online Service Providers (“OSPs”) if, and only if, they provide a DMCA agent to receive notice of copyright infringement in their TOS. An OSP is generally protected against copyright infringement suits by copyright owners stemming from third-party content on their sites/blogs as long as the OSP (in this case, your blog) removes the potentially infringing content in a “reasonable” amount of time.
The information presented herein by the firm is for general informational purposes only and should not be construed as legal advice. You should not act upon any information contained within this blog post without first seeking specific advice from us or from your existing counsel. The firm makes no warranties, representations or claims of any kind with respect to any of the information contained herein.