Nicollet.Net

Many online communities follow an a posteriori moderation scheme to eliminate unwanted content. This improves participation, because anything is published immediately without prior authorization and therefore motivates contributors to contribute more. Besides, it also reduces the cost of moderation by letting the users themselves tag unwanted content for removal.

Of course, things can get nasty once a team decides to post a heap of porn videos to youtube (read the CNET article): an a posteriori moderation scheme involves keeping any content, no matter how controversial, online for everyone to view for at least a short while.

And things get even uglier when the community wants the content to stay online, but external forces move in to remove it: parents do not want their teenage children to view naughty videos, industry majors do not want their music to be distributed freely on BitTorrent, and your ex-boyfriend doesn’t want you to publish that picture of him picking his nose on facebook.

The technical question of tagging content for removal is pretty simple: if you have a central authority controlling the content distribution, create an API to mark some content to be reviewed and, if applicable, removed. If there’s no central authority, too bad.

The legal question, however, is somewhat more complex, and revolves around three questions:

• How should the claimant request the removal of some content in a way that can be used as proof in court?
• Under what circumstances should the community be forced to withdraw the content?
• If the issue is taken to court, what charges can be upheld against the community and against the author?

This obviously depends on the country in which the community operates, since different countries are bound to have different laws.

In France, the main law on the subject is the LCEN—Loi pour la Confiance dans l’Economie Numerique, loosely translated as Law for Trust in the Digital Economy. It is quite restrictive.

First, whenever you use a public communication tool (such as a forum, a blog’s comments, or even your e-mail) you have to make your identity known to anyone reading your content. This means you have to provide your first and last name, home address and phone number. The penalty for giving out incorrect or incomplete information is up to one year in jail and a €75000 fine.

If you don’t want your public information to be freely available to everyone, you can provide all of that information to a service provider responsible for the technical infrastructure of your communication tool, and then provide the identity of that provider instead of yours. This is what happens when you send mail using a mail provider based in France: the provider knows who you are, and a court can find out who you are by tracking the e-mail back to its source and asking the provider.

So, what happens when you post a comment to my blog? Since I am based in France and am responsible for the technical infrastructure for publishing your comments, there are only two possibilities as far as the LCEN is concerned: either I am a mere hosting service, or I am the editor of your comment. The problem is that, as a hosting service, I am not allowed to edit the comments in any way, including for instance cropping out spam comments: everything published on the blog has to be posted as-is without my intervention.

Besides, as a hosting service, I am also required by law to ask you for your name, address and phone number, and I am pretty certain that you’re not going to give them to me. And even if you did, keeping that kind of information around means I have to sign up for a CNIL authorization (which is mandatory for keeping personal information) and must keep that information well-protected under penalty of one year in jail and a €15000 fine, and there’s no way I will risk a year in jail for such a silly reason.

So, I am an editor, and am therefore legally responsible for anything that gets published on my website, including comments from anonymous readers.

Now, do Facebook or Youtube behave as editors or hosting services with respect to French law? Not that it matters—the LCEN is only applicable when you actively set up shop in France to distribute content, not if you distribute content from outside the country.