Bloggers beware: You're liable to commit libel
These days, everybody and his dog has a blog. Unfortunately, almost nobody has a clue about their responsibility under defamation law. And if the dog has a clue, he ain't talkin'.
Most professional writers and members of the media are familiar with this stuff, but chances are, you're not. If you write, host, or even comment on a blog, you need to be. That's because, according to the U.S. Supreme Court, we all have the same rights and responsibilities under defamation law.
Now, I confess to not being a lawyer. But I am a blogger who would like to stay out of court. I've also run marketing for a few companies and have spent way too much time with lawyers, so I do know a fair amount about this stuff.
Since legalese can be intimidating, I thought I'd attempt a plain-English overview of the subject. I'd also like to invite those more knowledgeable than me to comment. Keep in mind that this is intended to open your eyes, not provide legal advice, which I'm certainly not qualified to do.
Seal of U.S. Supreme Court
First, people usually ask the wrong question: "Can a blogger be sued for defamation?" The sad truth is that almost anybody can sue you for almost anything these days. So, don't ask that question; it's dumb. What you want to know is your responsibility under the law, and therefore, how best to protect yourself from successful litigation.
To prove libel, which is the same thing as written defamation, the plaintiff has to prove that the blogger published a false statement of fact about the plaintiff that harmed the plaintiff's reputation. Let's break that down.
"Published" means that at least one other person may have read the blog. That's right, just one.
A "false statement of fact" is a statement about the plaintiff that is not true. Truth is the best defense against libel. An opinion is also a defense against libel. But, depending on the context, the difference between an opinion and a statement of fact can be remarkably gray. Context is a big deal in determining defamation.
One thing to watch out for: simply inserting the words "in my opinion" in front of a statement of fact doesn't magically make it an opinion.
Satire and hyperbole can also be defenses against libel, but again, very gray.
Then there's the matter of "harming the plaintiff's reputation." It's one thing to say that a false statement harmed your reputation, but if you can't demonstrate damages, the suit may be effectively worthless. Damages would include, for example, losing X customers that represent Y income, suffering emotional distress and so on. Also, if your damages are minimal, you may have a hard time finding a lawyer to take the case. They're a greedy lot. (That's an opinion, not a statement of fact.)
If the plaintiff is your average, everyday, run-of-the-mill person or company, then negligence is sufficient to prove libel. That means that a reasonable person would not have published the defamatory statement. If the plaintiff is a "public figure," however, then the plaintiff must prove actual malice--a higher burden of proof. That means that the blogger knew that the statement wasn't true or didn't care.
Then there's the question of who's responsible for comments on a blog. Whoever publishes the Web site is responsible for content on the site. That includes comments. However, many bloggers have independent agreements to indemnify the site that publishes their blog. That may or may not include comments.
Plaintiffs can certainly sue everybody in the chain and see what sticks, though they will likely go after those with the deepest pockets. You can avoid the entire question by turning comments off.
To make matters worse, this is the Internet, so there are individual state and national laws to consider. I'm going to stick with California and U.S. law, and hope for the best.
You may be able to get insurance for this sort of thing. I was able to get a quote for what's called media liability insurance, but it was expensive and had a high deductible. It also took lots of time and and paperwork just to get the quote. In any case, a business insurance broker should be able to quote you a policy from one of their carriers.
Well, those are the basics. Check out this EFF site on defamation for FAQs and examples. You can probably spend a lifetime understanding different scenarios and studying case law.
As for me, I'm planning to play it safe. I mean, how hard can it be to say nice things about people?
Steve Tobak is managing partner of Invisor Consulting LLC. He is a member of the CNET Blog Network, and is not an employee of CNET. Disclosure.
Had Larry Flynt's story not been done tongue-in-cheek or in the style of humor, and was a serious story instead, the lawsuit might have been settled in Jerry Falwell's favor. Something that bloggers have to keep in mind when they are writing serious blogs about news and articles and not comedy, humor, parody, or satire. I would assume that blogs like Maddox The Pirate's blog are covered under satire and parody, even if most people think he is being serious, the way he writes is funny and if one thinks about it, he is really using satire in a Johnathan Swift style of writing.
I'm a bit concerned that adding "in my opinion" to a statement of fact does not automatically transform it into an opinion. Balancing that is truth, which is the ultimate defense.
-- Greg "Goodhelp" McClure
http://www.goodhelpweb.com
of personal umbrella coverage, Amica, if my web site were covered under my
policy. They looked at the site, which was relatively uncontroversial, and sent
me a letter canceling my policy, I venture a guess that many bloggers and
personal web site operators have no coverage for libel, and if they do that their
coverage would be cancelled if their insurer sees the contents of their sites.
Aside from umbrella policies, inexpensive libel and slander coverages are hard,
if not impossible, for individuals to obtain.
We already know that Don Imus got in trouble for saying racial slurs even if he was joking, he met the consequences of his speech and got fired.
I guess that hate speech can get one into trouble.
The main problem in the USA and most of the world is that people refuse to take responsibility for their actions and behaviors and speech. They do and say anything they want and think that there will be no consequences, but in reality there are consequences for each negative action or behavior or speech.
People are getting harmed by others right and freedom of speech, and it is time we held those accountable for what they say. Yes they have a right and freedom to say whatever they want, but others have a right and freedom to sue them for libel or slander if what they said about them was not true.
As you can recall Ward Churchill got fired for saying untrue things and plagiarizing other people's speech as his own. Even college professors are not immune to the libel and slander laws nor plagiarizing rules at colleges.
The list also includes links to other sites on this topic.
Eric Robinson
Staff Attorney
Media Law Resource Center
As I explain in the post, this very thoughtful piece leaves out one critical thing when discussing user comments -- CDA 230. Check it out.
Sam Bayard
Assistant Director
Citizen Media Law Project
Steve Tobak
And many of the people who tend to bother you for finding your blogs personally offencive as the surf these sites looking for someone to mess with are also liable?
Hmmmm?
*wicked grin*
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by dr-barbara-levine
June 24, 2009 12:32 AM PDT
- this is very interesting, is there any news on any changes to US law to make Internet service republishes accountable in the same way as print media? My personal story is horrific. The following posting has ruined me:
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