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:

“Your words are your own, but you agree that I have the right to delete or edit as I feel appropriate or necessary.”

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:�

“By submitting a comment you agree that I may make minor edits, correct factual errors, remove obscenities or hateful language and otherwise change or even ultimately remove your comment from my site.”

This sounds more “lawyerlike” but suffers from the same disabilities.
Let me try a different approach:

“Many blogs don’t permit comments or trackbacks. I do. And while it is a pain to review them, remove spam and offensive language, I do so because I value your thoughtful opinions. Don’t be offended if I edit your comments for clarity or to keep out questionable matters. I may even delete off-topic comments.”

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:

“Because I value your thoughtful opinions, I encourage you to add a comment to this discussion. Don’t be offended if I edit your comments for clarity or to keep out questionable matters, however, and I may even delete off-topic comments.”

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!

6 comments on “Crafting the Perfect Blog Comment Disclaimer

  1. Thanks for the free legal advice. I believe, you have distilled this matter to a fine few lines.
    I certainly will incorporate this clause on my blog.
    Knowing my lawyers, you just saved me at least a grand.

  2. Thanks for letting us watch you craft your disclaimer. It’s really a miniature terms of service (and here’s hoping they all stay “mini”) with its primary goal to protect the publisher, right? I’d hate to see bloggers (conversation motivators) turn into floggers (conversation moderators).
    Great work Dave and Daniel!

  3. Very helpful post. Daniel’s very clear commentary and suggested phrasing are most impressive, as are his and your generosity in sharing this explanation and example.

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