Moderating a review website
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Moderating a UK based review website - practical considerations
If you are planning to start a website platform where internet users are able to either post online reviews or participate in discussion forums, you should be aware of your duties and obligations as a website operator.
There is no legal requirement in the UK for website operators to moderate a review website under their control. However, there are circumstances where website operators could be held responsible for third party posts so moderating a review website, at least to some extent, could prevent such liability turning into a legal problem. You cannot be held automatically liable for third party posts on a review website, simply because you take an active role in moderating the site. Operators of online forums and review websites want to facilitate a discussion, some of which might not be favourable to corporate organisations or to certain individuals. Knowing what your rights are as a website operator is vitally important if you wish to successfully resist attempts to of bullying by lawyers who act for those your users criticise. As an online discussion forum operator, you clearly provide a platform for debate, enabling the public to impart information and ideas.
Freedom of expression is held as the essential foundation of a democratic society and so forum and review website operators are often reluctant to censor their website and fear a chilling effect. Many operators operate their websites out of passion and with a strong belief in a specific cause.
English case law has given some leverage to the role the internet plays in enhancing the public’s access to news and facilitating the dissemination of information in general. Whilst as a forum operator you are unlikely to be liable for comments authored by third-parties, as discussed above, you are mostly likely to want to avoid being treated as someone who facilitates wrongdoing; this leads to a more practical question of your responsibilities.
There is no specific degree of website moderation required from operators of content sharing websites. We suggest that you carefully balance your goals and aims in operating a certain type of website against the nature of the third-party comments When monitoring, for example, whether user contributions to the website may constitute unlawful hate speech, you need to asses any complaints received, your own view of the comments and both law and case law. If the law is clear about certain type of speech, that it is considered as hate speech, you will need to take steps to actively identity instances this type of speech on your website and ensure that you act to remove it.
Some websites are more susceptible to unlawful speech than others. Often this would depend on the controversy of the topics discussed and on the nature of the user of the discussion form. In other words, it might be impossible for a website operator, where hate speech is prominent, to claim that they had not been aware of the hate speech. In England, it is possible to bring criminal prosecution against operators of websites under the principle of corporate prosecution.
As an operator of an interactive website, you should pay attention to complaints you receive and make sure that complainants are dealt with in according to both the website terms and conditions and the law. In England, there are some cases where the law prescribes methods of notification of website operators, which you should expect third parties to follow before you take any action to censor your website.
Website operators, if they are directors of the company that operates a review website, might be held criminally liable for their actions as officers of a company. There is no more or less liability for operators of review websites. A company, under English law is a legal personality which would be subject to criminal sanctions under certain circumstances, for example, under the doctrine of corporate responsibility. This means that the company may be criminally prosecuted for committing criminal acts or for conspiring or allowing for criminal acts to take place on the website. More likely, however, is that individuals who operate websites might be criminally prosecuted for offences of incitement, for facilitating the commission of criminal offences or even for conspiracy to commit crimes. This is not something which is specific to review websites or to moderation a review website.
Criminal liability is very rare yet possible. To avoid suggestions that the website is knowingly taking part in the commission of criminal offences, the website operator should be aware of the general nature of the content on their websites, of any complaints and of whether their website is being utilised for the commission of criminal acts.
Some of the most common reasons for needing to moderate a website in England are:
There is a prescribe form by which website operators can avail themselves of liability for defamation. It is, therefore, important to have in place an appropriate website policy that deals with defamation claims and notifications. The law prescribes a strict timetable for action by a website operator before the operator can benefit from immunity against defamation claims.
If your website regularly receives complaints or notifications of harassment on the platform, it means that it acts as a hub to internet trolls who feel that they can act freely on your website without having to worry about potential consequences for their action. If your website is being summoned to provide third party disclosure in relation to harassment, you will need to provide the information without delay and co-operate as much as possible with the solicitors and with the court.
It is possible for a website operator in England to be held accountable for the harassment of one of the website users. The harassed victim will need to prove, on balance of probability, that the website operator had facilitated their harassment, and this could possibly be done by demonstrating a lack of sufficient engagement with the victim, a lack of moderation, in circumstances where moderation of the website would have been reasonably expected and in other ways that would point to the responsibility of the failure of the website operator to adhere to their legal obligation to their user.
The legal obligation to the user may arise either by law or by the website operator’s user’s policy. It is important therefore to ensure that the terms and conditions of use for the website, the website policies and their user’s policies are well drafted to ensure they provide maximum legal protection to the website operator.
The law provides a process to determine how website operators should conduct themselves in terms of data protection laws. The starting point for website operators is to have clear and correctly drafted data protection policies and clear processes, alongside it, to help them handle date protection requests and complaints by the website users. In some cases, the law provides for strict timetables for website operators to respond to data protection requests and clear guidance as to what data they can store, where and how. It is important to have in place clear and well drafted data protection policies that are fit for purpose and that are designed for the use by the website operator on each particular website that they are responsible for or moderate. Website operators will also need to have processes, which are transparent and clear as to how they deal with data internally.
Breach of privacy may occur regularly on online discussion forums and on a review website. Posts of personal data, private information, unlawful recordings and other personal data may cause significant harm to internet users, whether they are users of the platform where the private information is published or not. It is therefore important that if you have reasonable grounds to suspect that the website that you are responsible moderating is being used to regularly post private and personal information about individuals, it would be incumbent on you to provide more extensive website moderation of the content. The damages payable in cases of misuse of private information can be substantial and as the operator of a website, you could be risking becoming the subject of such claim. The potential for breach of privacy should has have implications on the website’s data protection policies, which means all the website policies need to be drafted in a coordinated manner as each policy might have legal implications on the applicability of other website policies.
If you moderate your review website or online discussion forum extensively, the law is unlikely to penalise you for doing so. There are no provisions within English law to hold a responsible website operator to account for third party posts, just before it is known that the website is being moderated.
The law does not expect you to be a lawyer or to have a lawyer moderating your review website or online discussion forum. You may make judgements as to moderating your website and some of your judgments might be wrong. But this is ok. In most cases you will be better off providing moderation than not doing so at all.
Get in touch with our team to make sure that you have complied with all the legal requirements for operating and for moderating a review website. We suggest booking an initial consultation as a low cost way to find your way around the legal issues and potential liabilities of operating a review website. We will help you create website and businesses systems and processes that will keep you and your employees safe, and which will help your business grow in a flexible and safe way.
You will receive advice on terms of conditions for your review website, on any important external policies and on the internal systems and policies that you might want to implement to help our review website business grow and become attractive to potential investors. Our friendly and highly experienced lawyers will be able to support you through your journey and provide you legal and business support as you require it.