In addition, actionable defamation may occur where a site publishes untrue promotional statements about a person or company. For example, in one recent case, the Wall Street Journal was sued by the Harrods department store for publishing the statement that Harrods was the "Enron of Britain".

Congress came to the rescue of "interactive computer services" in 1996 with subsection (c) of the Communications Decency Act which provides: "No provider or user of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 USCA Sec. 230(c)(referred to below as "Section 230").

Section 230 was intended to overrule prior case law which routinely held that online providers were liable as publishers and speakers for third party content. Now, under Section 230, absent an affirmative showing by a plaintiff that an online service provider is the author of a defamatory message, email, or post, the provider should almost always avoid liability for defamation. In other words, if you or your employees are the authors of defamatory statements, you'll still be liable, but if your website visitors are the authors of defamatory material, you won't be liable.

A word of warning about another pitfall -- be careful in assuming an obligation to monitor messages, email, or posts contributed by your site visitors or in exercising editorial control over them. If you assume an obligation to monitor, or if you maintain editorial control, and if you fail to screen out defamatory statements, you may be liable, despite the protections of Section 230.

For this reason, your Terms of Use should clearly state the extent to which you exercise editorial control, if at all, over messages, email, or posts of site visitors. And it's always best to reserve the right to monitor postings, but not the obligation to monitor.

Conclusion In summary, if you have a blog, take the steps discussed above that are required to qualify for the DMCA "safe harbor" from copyright infringement. Ensure that that your employees do not post defamatory statements on your blog, and affirmatively disclaim any obligation to monitor posts by bloggers.

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