Ideally, guest posts are great for both your site and for you as the webmaster. For the guest post author, it’s a way to expand their reach and talk directly to your audience. For you, it’s a way to take it a little easy one day, offer some variety for your readers and improve the discourse on your site.
However, like almost anything you do online, guest posting comes with a set of legal risks. For the author of the guest post, these risks are pretty clear, they’re the author of the post so they bear all of the usual risks that come with publishing anything online.
But what about the owner of the site? They didn’t write anything and are just accepting and publishing the works of someone else, do they have legal risks to worry about?
The answer, sadly, is yes. You can’t simply publish anything that someone hands you and expect that you face no potential liability or other consequences. Depending on the details of your guest post, you can be held accountable for what your guest authors publish. Fortunately, there are simple ways to mitigate that risk and prevent guest posts form causing you trouble down the road.
Section 230 and Guest Posts
As we talked about previously, Section 230 of the Communications Decency Act provides you very broad protection from actions that are committed by your users. The idea is simple enough, as the provider of a platform for communication, you should not be held liable when that communication breaks certain laws, most prominently libel.
However, that protection starts to erode when you have editorial control over the work posted. For example, while you can delete comments that are against your site’s policies or even edit them to remove elements that are against guidelines, when you take proactive control and have an involvement in selecting the work or crafting the legally-dubious parts, your protection under the law becomes more questionable.
There’s no bright line here but the less control you have over a work, in particular before it is published, the better. For example, a comment posted to your site without any prior approval from you (beyond providing the comment form) has much more protection than, say, a post you solicited, proofed and approved before publication.
The line between being a platform and publisher is not clear and guest posts routinely cross it.
While Section 230 protections are primarily used to defend against libel claims, the protections can also be used to defend against a variety of other potential lawsuits including negligent misrepresentation, interference with business expectancy, breach of contract and much more.
In short, it’s protection that you probably don’t want to give up but may have to in order to enjoy adequate control over guest posts.
However, the more common issue would likely be a copyright one. What happens if the guest post turns out to be a plagiarism or to contain infringing images?
The Digital Millennium Copyright Act (DMCA) offers bloggers and other sites broad protections in a way that’s somewhat similar to Section 230 protections. However, unlike with Section 230, those protections are contingent upon you meeting certain criteria and that you work “expeditiously” to remove infringing material when properly notified.
Still, as with Section 230, the law says that you do not “Receive a financial benefit directly attributable to the infringing activity, in a case [you have] the right and ability to control such activity.”
It’s easy to see how this could be a problem for guest posts, especially on commercial sites. As with Section 230 protections, the issue isn’t as prevalent with comments, where there is less control, but depending on how involved you are in the editorial process and in selecting the work, it’s possible that a guest post could also push you past being a platform and make you an editor or publisher, giving you at least some responsibility and some threat of liability.
But even if we assume that the guest post qualifies for DMCA protection, there comes the issue of who would receive the notice. Ideally, you’d like the notice to be sent to you directly so you can remove the work and move on quickly. However, more likely, it would be your host who would receive it and they, in turn, would either inform you of it and give you a certain amount of time to remove it or, more worrisome, simply shut down your site until you fix the problem.
In short, even if you are completely protected from liability, your site can still be shuttered over a guest post and there’s not much that can be done about that. That is, other than taking precautions before hitting publish.
Staying Safe with Guest Posts
When it comes to guest posts, many are going to read the above and be tempted to take a more hands off approach, understanding that more editorial control equals greater legal risk when it comes to guest posts.
However, the message isn’t as simple as that.
The big problem with that approach is that there will be no quality control in the guest posts you publish. Though you may have lower legal risk, you’ll be allowing garbage onto your site.
Instead, if you’re going to have guest posts at all, it’s best to hold them to the same standard as your writing.
Read the posts carefully, ensure, the best that you can, that there is no libelous material in them and double check before publishing to ensure that the material is not infringing.
The easiest way to do this is to run the post through a plagiarism checker, such as Copyscape, Plagspotter or PlagsScan, all of which are excellent at quick one-off plagiarism checks. Even if the work isn’t infringing, you may learn that it’s marketing material shot out to dozens of sites and little value to your readers.
In short, through good editorial controls, you can spot most potential legal problems before they go online and also block other types of garbage content. That protects both you and your audience.
In the end, a guest post is simply a post you don’t write yourself. Legally, your responsibilities change but it’s probably best to assume that they don’t. While greater editorial control can, theoretically at least, bring greater legal risk, throwing the doors wide open has other consequences and may still not guarantee that you’re free of legal problems.
Instead, for you and your readers’ benefit, it’s best to hold guest posts to the same standard as you do your own. This means not only ensuring that they don’t contain any content that raises potential legal issues, but that they are of the quality and consistency expected of your site.
This means, unfortunately, you sometimes have to say no to a guest post. I’ve had to reject many on my site for quality or legal reasons, but it’s better to reject a guest post and temporarily strain relationship than accept one and raise legal issues or damage your site’s reputation for a long time to come.
A good friendship can recover, a good website might never be able to do that.
Jonathan Bailey founded and continues to write at Plagiarism Today, a site about content theft and copyright issues on the internet. He also manages CopyByte, a company that protects online content, and writes a regular column for BloggingPro.