How to avoid a lawsuit: tips for bloggers
Virginia De Bolt's timely and important post about the lawsuit filed against blogger Leslie Richard has understandably raised alarms. (If you haven't read it, please do -- there's lots of good advice about how to set up your blogging enterprise to protect your work and assets.) I thought I would piggyback on Virginia's post by contributing some information and resources that can help protect you not only from libel suits, but also from other kinds of legal snares as well. First, my disclaimer -- I am not an attorney and nothing in this post should be construed as legal advice.
Virginia's post covered many of the important considerations, such as the value of setting up your blog as a business whose assets and liabilities are legally separate from your own. She also talked about the value of posting a disclaimers and terms of service. If you do decide on one of these structures (and especially if you decide to sell products on your site), Imke Ratschko advises you to be sure that you have the licenses you need for an e-commerce website. She gives examples of what's required in New York State, but those in other states might find her post a useful beginning for the questions you need to ask in your own jurisdiction.
Virginia also discussed the importance of honesty and providing evidence for the factual claims that are made in blog posts. If your diligent research uncovers information that might be damaging to someone, it's important to give that person a chance to explain or rebut the information before publishing, as Robert Niles, former editor of the Online Journalism Review explained in this 2007 article.
All of this is especially important in cases of potential libel. It's important to understand what libel is. Libel occurs when one person publishes a statement about someone else to a third party that is:
- defamatory (damaging to the second person's livelihood or reputation
- made with "reckless disregard" of the truth
Conversely, common defenses against libel are:
- that the statement is true
- that the statement is not defamatory
- that the publisher of the information made sufficient effort to verify the information published, and had good reason to believe it was true
- that the statement is "privileged." Some statements, such as declarations made by members of Congress, are exempt from libel action.
- that the statement is "fair comment" -- particularly when it comes to public figures.
- that the statement is satire (see Hustler v. Falwell and read what the late Rev. Jerry Falwell and magazine publisher Larry Flynt had to say about it in 1997.
- that the subject consented to the publication of the information.
By the way, for the purposes of the law, "publishing" doesn't have to be in a public medium. A private letter, for example, can be libelous.
One of the places where all of this gets tricky is when you run a blog or online community that allows for user-generated content -- blogs, posts, or even just a listings site, like Craigslist. There is a growing body of law focused on the publisher's responsibility for content posted by others that might be defamatory, fraudulent, racist or other otherwise suspect. On a busy site, objectionable content can pop up as quickly as conscientious publishers can delete it. Generally, publishers have been granted immunity in such cases, but the case law is still evolving. For example, last spring, Cathy Kirkman wrote about a ruling in a case involving Roommates.com that said that publishers might be liable if they contribute original content to their sites, instead of just acting as a conduit for others content.
Freelance writers who blog also have to keep track of shifting legal rules. For example, some publishers require freelancers to sign "non-compete" agreements -- promises that they won't write for a direct competitor. Of course, in a world where the most local content becomes global once its on the Internet, a direct competitor can be hard to define. Robert Ambrogi notes that a recent California Supreme Court decision ruling most non-compete agreements there illegal is sending shockwaves throughout that state's legal community.
Finally, it's important to know what public information you're entitled to, and what you are allowed to keep secret. The Reporters' Committe for Freedom of the Press is a treasure trove of information on open records laws, as well as state and federal shield laws.
All of this is a lot to keep track of, I know. Fortunately, there are some great resources out there to help you. First, the Electronic Frontiers Foundation publishes a legal guide for bloggers that's a great starting point. The Media Bloggers' Association has also helped bloggers resolve some disputes without litigation. Also, the Society of Professional Journalists publishes a useful code of ethics. SPJ has donated funds to freelancers and bloggers in legal trouble in the past. Most notably, they contributed $31,000 to help videoblogger Josh Wolf fight his imprisonment for refusing to turn over unpublished footage of a demonstration.
- Legal and business advice for online publishers and bloggers. Online Journalism Review,April 11, 2007. My interview with an intellectual property expert.
- Poynter.Org's ethics columns offer valuable case studies and current legal advice and best practices
- Carolyn E. Wright's Photo Attorney blog specifically focuses on the legal rights and responsibilities of photographers and visual artists.
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