Exhale
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About a week ago, I found out that ScubaBoard, a highly popular and well established scuba diving community, had been sued for libel in Federal court. ScubaBoard is run by Pete Murray, an acquaintance of mine that I have known for at least a few years. Pete has been supportive of me and my endeavors, including his offering of advance praise for my book. So, for me, this is unfortunate news and I am supportive of Pete.

In order to properly cover this story here at ManagingCommunities.com, I decided to turn to my friend Jonathan Bailey for a guest post and a legally minded take on the issue. Jonathan runs CopyByte, a copyright consulting firm and authors Plagiarism Today, an incredibly useful site dealing with content theft, plagiarism and related subjects.

On January 29, 2010, Maldives Scuba Diving, a Maldives-based company that brokers scuba diving trips to the picturesque nation, filed a libel suit in a Florida court again InterMedia Publications, the company that owns the popular scuba diving forum ScubaBoard.

It’s the kind of lawsuit that sends chills down the spine of forum administrators, most of whom are either small businesses or simply individuals running the forum for fun. The possibility of being hauled into Federal court is frightening, especially when one looks at the expense of defending such a suit and, even worse, the potential damages that can be awarded.

Though lawsuits such as the ScubaBoard one are relatively rare, it is well worth taking a moment to understand the rights forum administrators have when it comes libel and what forum administrators can do to mitigate against situations like this one.

Because, while the sad truth is that there are some people who will sue no matter what, there are ways to avoid the majority of potential cases.

Background

The case actually begins with a very unfortunate incident in 2008 in which eleven divers were sickened, one of which died, due to tainted air in their scuba tanks. The incident was widely discussed on many scuba diving boards, including on ScubaBoard, and it resulted in a great deal of negative press for the company, at that time named “Strictly Maldives”.

Sometime between the incident and the lawsuit, the company either changed their name or the company’s owner, Gundi Holm, started up a new company named “Maldives Scuba Diving” (MSD). When members of ScubaBoard caught word of this, they began to spread the word on their site, warning others about the owner’s history.

In January, MSD filed suit against InterMedia Publications, one of the forum members, a Canadian they identified as Brian Verbonac, and 100 “John Does” they do not know the identity of. According to MSD, they were nothing more than the travel agent for the diving trip and the local crew was the one responsible for the safety. Furthermore, according to their suit, the tone of the conversation crossed into libel, for example, one comment saying that “Here in Dubai, she would be tried for manslaughter. And rightly so.”

The members of ScubaBoard have rallied around their administrators, raising money to help the site defend the case, which they anticipate may cost anywhere between $10,000 and $100,000 to defend. The administrators at ScubaBoard have not, as of this time, removed any of the allegedly libelous posts.

What the Law Says

RJ45
Creative Commons License photo credit: jmt-29

When it comes to matters of libel and forums, administrators in the U.S. are actually very well covered. Section 230 of the Communications Decency Act, says 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.”

In short, this means merely giving someone a platform that they use to make a libelous statement does not make you liable for those statements. It also applies to other areas of the law including infliction of emotional distress, interference with prospective economic relations (two items also listed in the MSD suit) as well as intentional nuisance and violations of federal civil rights. However, it does not protect forum administrators from copyright claims, though DMCA safe harbor protections provide that, or anything to do with criminal law. Also Section 230 will not provide protection for anything said by the administrator or any employees of the forum, something MSD accuses ScubaBoard of doing.

However, even if one ignores Section 230, the case is still a difficult one to prove and the burden is on MSD to prove it. There are many defenses to libel including the following:

  • Truth: The statements were derogatory but were accurate.
  • Opinion: The statements were not intended to be taken as fact and were merely an expression of one’s beliefs.
  • Fair Comment on a Matter of Public Interest: Statements reasonably believed to be accurate on a matter of public interest, such as a scuba diving accident.
  • Statements Made in Good Faith: Statements reasonably believed to be true and can be supported, but later turned out to be false (such as quoting an incorrect news article).
For MSD to prevail in the long term against any of the defendants, they will have to not only show that the statements were materially untrue, but also that they were said in bad faith. This can be very difficult to prove in the best of cases. Furthermore, to successfully target the administrators, they will have to show that the Section 230 protections do not apply, most likely by showing that they posted defamatory comments themselves.

But even though the forum and its members certainly seem to have a lot of potential protection from the suit, the cost and headache of defending such a suit can be unbearable. One member of ScubaBoard recently posted on a similar case involving a different scuba diving forum involved in a libel lawsuit against a diving instruction company. The site won, but was so drained by the end of the conflict that it had shut down.

It’s a scary possibility, but it is one that every forum administrator has to face.

Mitigating Disaster

The problem with forums is that, for it to be worthwhile, it has to be able to discuss controversial topics. Furthermore, there are simply people out there who will attempt to sue in order to intimidate and prevent unwanted information, no matter how accurate, from being made public.

That being said, there are a few things that administrators can do to keep this possibility to a minimum:

  1. Have a Strong TOS/Forum Rules: Have a good set of forum rules that prevent things like personal attacks and libelous statements. Though you might not be legally responsible for them, they can poison a community and encourage pointless lawsuits.
  2. Express Opinions and Backup Facts: Encourage your users to express their opinions as opinions and to backup any derogatory facts with evidence, usually in the form of a link. Truth and opinion are two defenses to libel suits, as mentioned above, and can discourage baseless suits.
  3. Limit Personal Involvement: Though it is nice to be involved in your community, remember that anything you say does not receive Section 230 protection so use caution when participating in debates or discussions that could include libelous content. Instead, focus more on forum maintenance and management.
  4. Use Private Messages Widely: If someone wishes to say something about another member that could potentially be libelous, have it be over private message. Libel requires dissemination to a third party and private messaging prevents that.
  5. If it Feels Wrong, Remove It: If a statement feels as if it has gone too far, remove it. Editing your forum does not sacrifice your Section 230 protection and it may help prevent a baseless lawsuit.
Most of these steps, however, are simply good forum admin practices and nothing more and, if you follow those, while you can’t guarantee that you’ll never be sued, it does make it much less likely.

Bottom Line

My Trusty Gavel
Creative Commons License photo credit: steakpinball

The unfortunate nature of our current legal system is that anyone can sue anyone else at any time for anything. They might not have a chance at winning, but they can still hoist the burden and the annoyance of a lawsuit upon someone at any time, for any reason.

This can hit anyone in any capacity. If you’re a homeowner you can be sued by your neighbor, if you’re a salesperson, you can be sued by your customer and, if you’re a forum admin, you can be sued by individuals and companies not happy with the conversation on your site.

Still, there is no reason to bring on additional risk and invite such a situation. Even if there is no way to completely prevent it, being able to mitigate against is often reason enough to take a few basic, common sense steps to avoid disaster.

Jonathan Bailey is a copyright and plagiarism consultant and the CEO of CopyByte, a consulting firm specializing in copyright on the web. You can also find him at his blog Plagiarism Today, a site dedicated to helping content creators protect their work, and stomping around the New Orleans area looking for geocaches.