We analyze case: Moderator of the forum against offended and offended

The theory is great, but even from the simplest articles it is not always clear how to act in a particular situation. Therefore, once a week we decided to disassemble cases.
If you have a “pain” about which you really want to talk with a specialist, send “symptoms” to our email: info@zarlaw.ru. In the subject line write: "Disassemble my case!".
For now we will take examples from our practice.
All stories are real and the characters are not fictional, any coincidences are not accidental. However, not all cases, we can reveal the real names of actors.

Sit back and imagine the following situation:
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On the forum of the site (not the media) the user “MaminoZoloto98” posted a small note about the activities of the official, under which there was a discussion with other users.
This official decides that forum posts have tarnished his honor and dignity. In this regard, he sues the legal entity that owns the resource. The data thereof were listed directly on the site.
In court, the official becomes the Plaintiff, and the owner of the forum is the Respondent. So, in the statement of claim, the Claimant asks to recover moral damages in the amount of 1,000,000 rubles and to require the Respondent to post a refutation.
Now, when it comes to court, the official turns into Plaintiff, and the site owner becomes the Respondent.

Attack

The plaintiff referred to the inability to establish users (it was not possible to calculate by IP). And due to the fact that the site belonged to the Respondent, the Claimant considered it possible to sue him.

Protection

In preparation for the trial, two main lines of defense were chosen:

1. User agreement resource.

• It expressly states that all responsibility for messages posted in the "Forum" section is borne by users. The site owner does not conduct a preliminary moderation, but can delete information in the event of a user complaint.
• It also contains information that cannot be posted by the user (everything related to discrimination, alcohol, porn, etc.).
• To join a user agreement, the User must go through the registration procedure and accept the user agreement.

A protection strategy was built around these provisions, which was based on the fact that the site owner creates only conditions for placing information, and the information is placed by users on their own.
2. The site is not a media.
Under such circumstances, the site is a means of committing an offense, and civil law does not imply liability of persons who have created the technological conditions for an offense committed by third parties.

As a regulatory justification for the position were used:

• Constitution of the Russian Federation (in terms of guarantees of freedom of speech);
• Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, which contains a position on freedom of expression, that is, everyone has the right to freely express his opinion;
• The plenum of the Supreme Court of the Russian Federation in Resolution No. 3 of February 24, 2005, according to which government officials may be criticized in the media as to how they perform their duties, since it is necessary to ensure their public and responsible performance of their powers;
• Civil Code.

The court's decision

Claims are denied completely.

The court pointed out that, in accordance with the explanations given in the resolution of the Plenum of the Armed Forces of the Russian Federation of February 24, 2005 No. 3 "On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" and the business reputation of a person in respect of whom false information is false, is also not excluded if it is impossible to identify the person who disseminated such information (for example, when sending anonymous letters to citizens) en or organizations or distributing information on the Internet by a person who cannot be identified). In accordance with clause 6 of Article 152 of the Civil Code of the Russian Federation, in this case, the court is entitled, upon the application of the interested person, to recognize the information disseminated in relation to it that does not correspond to the reality with damaging information. Such a statement is considered as a special procedure.
The inability to identify the user by IP-address does not deprive the Claimant of the opportunity to apply to the investigating authorities in accordance with the procedure established by the criminal procedure legislation with a statement about the initiation of a criminal case against unidentified persons, taking measures to find the guilty persons.

To prevent this from happening to you (if you have a website with a forum), we recommend:

Be sure to work on the issue of liability in the user agreement.

The following provisions of the user agreement can serve as the basis for the cancellation of the decision of the court of first instance (in which the site owner is held liable for users' messages):
“... According to clause 1.5 of the said rules, forums are post-moderated. Thus, the site administration does not pre-edit posts posted by users. In the same paragraph of the rules, the administration notifies users that the administration of the portal is not responsible for the information published by private users and does not control it, carrying out only support for the technical possibility of publication.
According to section 3 of these rules, any activity that runs counter to the legislation of the Russian Federation is prohibited on the forums. It is forbidden to post or transmit via the forum any materials, messages, information, data, text, software, images or videos that are illegal, harmful, threatening, offensive, abusive, irritating, dishonest, slanderous, vulgar, obscene, disgusting, encroaching upon private or public rights, as well as inciting racial, ethnic or other discord (paragraph 3.1) ”. (Determination of case No. 33-1925-12 dated 06/20/2012. The Supreme Court of the Chuvash Republic). Plus, the procedure of complaints was moderated in detail to the moderators.

It will not be superfluous to register, when registering, any data that will allow, in the case of a court, to identify users of the “MaminoZoloto98” type.

These simple steps will protect you in court. But we advise to resolve such issues in the pretrial order, if possible. Good luck!