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:

false
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.

Other resources:

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.

Submitted by Kim Pearson (view blog

) on Tue, 08/12/2008 - 23:12

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Thanks Kim

Your post was most appreciated and informative.

www.ClaudiaBroome.com

www.LadiesDontQuitYet.com

www.ToHaveAndToHoldHostage.com

Submitted by Claudia Broome on Wed, 08/13/2008 - 05:34

Treasure Trove

Thanks, Prof. Kim. Several of these links are now bookmarked. Now - are you sure you aren't an attorney? :)

Notions of Identity

Submitted by Laracolvin on Wed, 08/13/2008 - 07:22

Much appreciated information

With all the excitement and immediacy of a (new) blog, your post was very timely and enlightening. Thanks for the reminder to look before leaping. Leaping feels so good but within safe boundaries is a much better idea!

Submitted by kimmerie on Wed, 08/13/2008 - 08:06

Re: comments

Wanted to add that it's always a good idea to write in your Legal page that you are not responsible for user comments. It's not 100% foolproof, but it certainly can't hurt. As explained by one of the commenters on Virginia's post, legal disclaimers do have the power to protect you.

Vered DeLeeuw

http://momgrind.com/

Submitted by Vered on Wed, 08/13/2008 - 09:43

Glad to be of help

and yes, Vered you are right. Disclaimers on comments are important. My personal blog traffic isn't heavy, so I moderate all the comments to my site. Not everyone can do that, though. Even when you can moderate, you might not catch the meaning of a comment that is targetted at someone else. Case in point: Some years ago, I worked with a newspaper that had a personal section that allowed a lot of rude and off-color content. I was not personally involved with that section, but I was generally aware of what went into the paper. (Think Village Voice personals, but that wasn't the paper.) Someone sent in a personal ad that had a line in it that the editors took to be slang. It turns out that the "slang" term was actually someone's last name, and that person was being harassed and threatened. Without knowing it, we had contributed to this person's distress. We ended up having to have a conversation with the police. Not an experience you want to have, believe me.

Kim
BlogHer Contributing Editor|Professor Kim|

Submitted by Kim Pearson on Wed, 08/13/2008 - 11:10

What about using initials or fake names

I've notice that some bloggers write about personal matters using false names for the objects of discussion or the person's initials. I think some novelists used to do this way back when. Is that really protecting yourself from lawsuit or can someone make a good case that the public knew who the writer was really talking about?

Of course, the lawsuit itself is scary enough because you lose money trying to defend that you did not act with malice or what you said was true.

Nordette is a Contributing Editor with BlogHer.com whose personal blog is hosted on another site at this link.

Submitted by Nordette on Wed, 08/13/2008 - 12:21

It depends

If your description of the circumstances is such that people who know the person can figure out who you are talking about, you might still be liable. There was a famous suit from the 1980s about a fictional piece in Penthouse involving the "sexual exploits" of a former Miss Wyoming. A real former Miss Wyoming sued, saying that the story made people think that she had done the things described in the story. She won a big settlement. So a pseudonym does not necessarily help.

Kim
BlogHer Contributing Editor|Professor Kim|

Submitted by Kim Pearson on Wed, 08/13/2008 - 12:35

A telling story to remember

The Miss Wyoming example is a great story to remember and a cautionary tale. :-)

Nordette is a Contributing Editor with BlogHer.com whose personal blog is hosted on another site at this link.

Submitted by Nordette on Wed, 08/13/2008 - 14:17

Great topic!

I am especially intersted in number 6 "that the statement is satire"...

My entire blog is satire and I often worry about being sued. This is something I would love to learn more about.

Submitted by DirtyLaundryDiva on Wed, 08/13/2008 - 12:40

Thanks for this post

Thanks for adding so much more useful information and resources to the information about this story. Very helpful!

Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words

Submitted by Virginia DeBolt on Wed, 08/13/2008 - 14:22

Thanks

One of my biggest fears (blog-wise) is that I'll say the wrong thing and ultimately get myself sued.

Available Light & Five Dollar Radio

Submitted by kperfetto on Wed, 08/13/2008 - 15:10

Contact www.eff.org

What seems to be being described is a S.L.A.P.P. suit. An attempt to intimidate someone through the courts because they are expressing an opinion. The Electronic Freedom Foundation has been fighting these suits successfully since the early days of internet sites with complaints about corporations.

MLO / Melissa

Submitted by MLOKnitting on Wed, 08/13/2008 - 21:52

I should add...

Attorneys are paid by clients to be on the "alarmist" side so that informed decisions can be made. If you make yourself a public figure you become fair game in the USA. What I find fascinating is that so many people in the US don't understand that libel is incredibly hard to prove here - not like Great Britain. That is the reason that celebrities bring suit in Great Britain - their laws surrounding this are much more stringent.

Libel and slander laws come dangerously close to infringement on First Amendment free speech. It is rare to successfully sue for libel if you have made yourself a public figure or are a corporation unless the libel is so blatant as to be almost absurd. Now, that being said, some have sued successfully around laws governing the ability to do business and that is where the waters get murky.

The real issue for most bloggers is whether they have the money or not to pursue / defend in a court case. THis is why it is so important to financially support EFF.

MLO / Melissa

Submitted by MLOKnitting on Thu, 08/14/2008 - 12:43

Talk softly or carry a big savings account

This is a litigious society and while I am not sure of the threshold(not a lawyer) for someone getting their libel case against you to court...If they do..you have to show up, you have to have a lawyer and it costs big bucks. Most people are not aware that almost anybody can get you into court and you have to spend your money to protect yourself against the most frivolous of accusations. Some cases are just nuisance cases that people bring to muck up your life...and if they win so much the better for them. This past ten years Americans have gone absolutely crazy sharing their opinions on any and everything. Remember speech is protected, but in some instances it may not be free!

Submitted by Anghiari on Fri, 08/15/2008 - 08:18

Gracias

This is so helpful - sobering - but helpful.

blog.candelariasilva.com

Good and plenty!

Submitted by Candelaria Silva on Thu, 08/14/2008 - 17:09

A Letter to VMT

info@visionmediatelevision.com

After reading about your lawsuit against the woman who shared an unflattering opinion of your company on her blog, I just want to thank you.

Thank you for the reminder that we live in a society where if your feelings get hurt, you can clog up the courts with frivolous lawsuits.

Thank you for acknowledging that a blog, and bloggers, play a role in shaping opinions. In a sense, your lawsuit validates the years I've spent writing on the internet.

Thank you for choosing to protect your reputation in this manner. I can't think of a better way to have your company spotlighted and investigated in the public eye. Had I read the blogger's post prior to the lawsuit, I might have thought "Well, that's her opinion" and quickly forgotten about it. Now I can read reports on how you have had lawsuits brought against you in the past because of your..... savviness.

http://insidehighered.com/layout/set/print/news/2008/08/08/video

Imagine it... you will forever be known as the company that sued a blogger for stating her opinion rather than the company which makes great documentaries... for a fee.

Thank you for prompting bloggers to take action to protect themselves and to clearly define how we can share our thoughts in a legal manner without bringing the wrath of a "savvy" company upon our heads. Because of you, the next generation of criticism will be much more effective with such clearly defined borders.

Sincerely,
Jennine Johnson

Submitted by Jenninejohnson on Fri, 08/15/2008 - 07:08

Thank you!

I've been conscious of this stuff from the beginning, but I've not actually sat down and read about the details and things I might not be aware of.

Thanks!

Liz Rizzo

I blog at Everyday Goddess.

Submitted by Liz Rizzo on Fri, 08/15/2008 - 07:10

Eye Opener

I'll be heading to our town office to delegate any possible changes my web business may need. Thank you for the very informative article.

Debbie Raymond-Pinet

Submitted by mineaux on Fri, 08/15/2008 - 11:51

Defamation, Negligence and Libel

SocialButterfly, www.fly4change.wordpress.com I am not a lawyer, but I did a 3-part series titled "Blogger Outreach Series" on my blog www.fly4change.com and went over defamation, negligence, privacy and libel for bloggers. I had attended a half-day workshop with a law firm who broke down the concepts for us to pull my information, as well as other research, however...I am def. NOT a lawyer. =)

Hope it helps!

Submitted by SocialButterfly on Mon, 08/18/2008 - 17:33

disclaimer

Thanks so much for this help.

I am not a lawyer, but I am a practicing Nurse Practitioner and have to carry not only malpractice insurance, but business insurance too. As a health expert on TV in San Francisco, and a health expert for www.TheCradle.com, I have to be very careful how I answer questions and be certain to always suggest that people go to see their own health care providers for specific information.

Thanks to this discussion, I also added a disclaimer on my blogsite www.NurseBarb.com

Thanks so much

Nurse Barb

Submitted by NurseBarb on Fri, 08/22/2008 - 10:46