The Business Blog at Intuitive.com

Dave Taylor has been involved with the Internet since 1980 and is widely recognized as an expert on both technical and business issues. He has been published over a thousand times, launched four Internet-related startup companies, has written twenty business and technical books and holds both an MBA and MS Ed. Dave maintains four weblogs: The Business Blog at Intuitive.com, Ask Dave Taylor, Dave On Film, and Attachment Parenting Blog. Dave is an award-winning speaker, sought after conference and workshop participant and frequent guest on radio and podcast programs.

Crafting the Perfect Blog Comment Disclaimer

After all the discussion about the lawsuit and legal liability that bloggers apparently have with the comments on weblogs (see my earlier piece on Blogger sued for comments on his weblog), I’ve decided to add a small disclaimer to this blog to help protect myself in case anything untoward might occur in the future.  Should you add one on your site? Maybe, maybe not.

To get the full scoop, and to help write a disclaimer that will actually protect me against potential lawsuits, I’ve asked attorney Daniel Perry to help with this particular entry. My prose is in black, Daniel's is presented in blue.

Here’s my first stab at a disclaimer:

Daniel responds: First, a disclaimer: there is no such thing as a perfect blog comment disclaimer. Each blog may require its own individualized disclaimer. Moreover, a comment disclaimer should be a living part of your blog which might change as we learn how these disclaimers are treated by courts. 

Fortunately, there is a wide body of caselaw and law review articles concerning website disclaimers. It is not necessary to reinvent the wheel. Caution is appropriate when applying those case precedents, however. Blogging is a more dynamic interaction - truly akin to a somewhat stilted conversation. Judges will eventually view this distinction as significant. After all, doesn't a reactive series of posts and responses start to look like advice which may be relied upon - to the benefit or detriment of the commenter? 

Perhaps one consideration of your blog policy would be when the blog "moderator" should actually respond to comments - immediately, hourly, daily, or weekly? Never? And doesn't a specific "conversation" with a citizen of another state begin to resemble an intent to direct communication to the citizen of that state? Would it come as a surprise that a judge would see that as indication of intent to subject yourself and your blog the jurisdiction of that state?

A healthy dose of skepticism is important. We should not kid ourselves that people actually read these things. Courts suspect that, too. I encourage "plain language" wherever possible as I am sure you enhance your credibility in court if some effort is made to make the disclaimers intelligible. Wherever possible, humor should be used simply to enhance the likelihood that it would be read. As an example,  I recall one posted website disclaimer that started with the tagline of "Legal psycho-babble our lawyers made us use..."

My first difficulty with your proposed disclaimer is with the first five words: "Your words are your own ..." Is this an attempt to deflect responsibility for the posted comments? If so, it won't work. Your blog is an environment created by you for the purpose of hosting these words. It's your public message board. Those words belong to you. Do not give lip service to their tenuous ownership interest in your creation?.

It is unnecessary to use the word "agree." Why should you have to get them to agree that you can change a posted comment on YOUR blog? Once posted, the comment belongs to you, just as the New York Times owns the copyright to the Letters to the Editor.

So why have any disclaimer at all? Maybe a better approach would be to incorporate the disclaimer into the HTML of the "submit" button. Perhaps "Post my comment (edit if you must)."

Okay, I guess it was inevitable that a lawyer couldn’t be succinct! :-) Round two: 

We're getting closer, but I don’t like starting with a negative comment so I still want to push the words around so that it’s useful, effective and encouraging, all at the same time. Another shot at it:

Succinctly stated: Looks good to me!

Me too. This comment disclaimer has been added to this Web site and anyone else in the blogosphere who is worried about potential liability issues is also welcome to either use the exact same disclaimer or a variant thereof.

Thanks, Daniel!

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